Ask a business owner in India what protects their product and the answer is usually a confident single word: a patent, or a copyright, or a trade mark. The confidence is often misplaced. The product in question may need two of those rights and not the third, or it may need none of them because the protection the owner wants does not exist in Indian law at all. This is the field that intellectual property law in India maps, and it is worth mapping carefully because it is one of the few areas of Indian law where a wrong first step, such as filing for the wrong right or approaching a forum that no longer exists, wastes the money spent on the right steps that follow.

The difficulty is partly that the field is fragmented across six statutes and several treaties, and partly that the forum where disputes were heard changed materially in 2021. For nearly two decades a specialist appellate body, the Intellectual Property Appellate Board, sat between the intellectual property offices and the courts. It was abolished in 2021, and the appeals it heard go to the High Courts, one of which has built a specialist division to receive them. A great deal of published guidance on where to appeal has not been updated, and the first question this guide answers is therefore the most practical one: where each right lives and where a dispute about it is heard.

The second difficulty is the commonest confusion in the field, which is about registration. For some rights registration is the act that creates the right, for others it is evidence that helps enforce a right that arose on its own, and for one important right it is not needed at all to sue for infringement. Getting this backwards, by assuming that copyright must be registered or that a patent exists because an application has been filed, is the error this guide is written to prevent.

This article is a guide to the whole field. It states the constitutional basis on which Parliament legislates in it, sets out the six statutes in headline form, places the international treaties India has joined, identifies who administers each right, and describes the 2021 forum change in full. It does not teach any single statute in depth. The Patents Act, 1970, the Copyright Act, 1957, the Trade Marks Act, 1999, the Designs Act, 2000, the Geographical Indications of Goods (Registration and Protection) Act, 1999 and the Semiconductor Integrated Circuits Layout-Design Act, 2000 each have their own articles in this series, and the article on each is the owner of its provisions. This guide routes the reader to those articles and owns only the map.

The constitutional map: why intellectual property is a Union subject

Intellectual property is exclusively within Parliament’s competence. The Union List reserves to Parliament entry 49, covering patents, inventions and designs, copyright, trade marks and merchandise marks, which means there is no state legislation in this field at all. That distinguishes this cluster from almost every other cluster in this series. A business operating across states faces one patents statute, one trade marks statute and one set of offices, wherever it is registered and wherever it sues.

The consequence for litigation is equally centralising. Disputes about these rights are heard by the courts of the Union’s legal system, the High Courts and the Supreme Court, and the offices that grant the rights are central bodies. There is no state patent office, no state trade marks registry and no state copyright office. When this guide says an appeal lies to the High Court, it means the High Court of the state in which the office that passed the order sits, because the intellectual property offices are regional branches of central bodies: the patent offices function at Chennai, Delhi, Kolkata and Mumbai, the trade marks registry at five locations, and the geographical indications registry at Chennai. The appeal goes to the High Court having jurisdiction over the relevant office.

That single-jurisdiction character is the reason the 2021 abolition of the specialist appellate board could be accomplished by amending the central statutes alone. There were no state statutes to touch, and the substitution of the High Court for the board in each statute operated uniformly across the country.

The six statutes, in headline form

The field is made up of six statutes. Each protects a different kind of intangible asset, each has its own conditions, its own term and its own office, and the art of using the field is matching the creation to the right. The sections that follow state for each statute what it covers and what it does not, and then this guide moves on. The full account of each statute belongs to its own article.

The Patents Act, 1970 (Act 39 of 1970) grants a monopoly over inventions. A patent is given for an invention that is new, that involves an inventive step and that is capable of industrial application, and it confers the right to prevent others from making, using, selling or importing the patented product or process for a term of twenty years from the date of filing the application. The right arises only on grant; filing an application confers no enforceable monopoly. The statute excludes certain subject matter from patentability, including, by Section 4, inventions relating to atomic energy, and it contains the provisions on compulsory licensing and on Section 3(d), the provision on the patentability of new forms of known substances that the Supreme Court construed in the Novartis litigation. That provision and that judgment have their own articles in this series, which own the ground. The guide to the Patents Act, 1970 sets out the grant procedure, the opposition machinery and the working of patents in full.

The Copyright Act, 1957 (Act 14 of 1957) protects original literary, dramatic, musical and artistic works, cinematograph films and sound recordings. Copyright arises on the creation of the work; no registration is required for the right to exist, and, subject to the registration provisions, registration is not a precondition to suing for infringement. That is the single most misunderstood point in the field, and it is worth stating twice. The term is the life of the author plus sixty years for most works, with sixty years from publication for government works, anonymous and pseudonymous works and posthumous publications. The statute also protects performers’ rights and broadcast reproduction rights, and the 2012 amendments, which have their own article in this series, reshaped the position on copyright societies and on the rights of authors in the face of assignment. The guide to the Copyright Act, 1957 owns the provisions, the fair dealing defences and the licensing machinery.

The Trade Marks Act, 1999 (Act 47 of 1999) protects marks, which the statute defines to include devices, brands, headings, labels, tickets, names, signatures, words, letters, numerals, shapes of goods, packaging and combinations of colours, used in the course of trade to distinguish one person’s goods or services from another’s. Registration confers the exclusive right to use the mark in relation to the goods or services for which it is registered, and it is renewable indefinitely in periods of ten years, which makes a trade mark the only intellectual property right that can in principle last forever. An unregistered mark can be protected through an action for passing off, the common law remedy against misrepresentation, but registration gives the proprietor the statutory infringement action and the registered proprietor’s presumptions. Well-known marks receive additional protection against registration or use on dissimilar goods. The guide to the Trade Marks Act, 1999 owns the registration procedure, the grounds of refusal and the rectification machinery.

The Designs Act, 2000 (Act 16 of 2000) protects the features of shape, configuration, pattern, ornament or composition of lines or colours applied to an article, judged solely by the eye. It protects appearance, not function. A design must be new or original and must not have been published in India or elsewhere before the application, and the statute excludes designs dictated solely by function, mere mechanical devices and trademarks as such. Registration is the act that creates the right, and the term is ten years from registration, extendable by a further five. The distinction this draws with patents is the one that decides real cases: the way a product looks is design territory, the way it works is patent territory, and a feature that is purely functional belongs to neither. The design pillar of this series sets out the registration and cancellation procedure.

The Geographical Indications of Goods (Registration and Protection) Act, 1999 (Act 48 of 1999) protects indications that identify goods as originating in a territory where a given quality, reputation or other characteristic of the goods is essentially attributable to their geographical origin. Darjeeling tea, Kanchipuram silk and Alphonso mangoes are the familiar Indian examples. The right belongs not to a single proprietor but to the producers of the region, who are registered as authorised users, and registration is for ten years, renewable. An unregistered geographical indication can be protected through a passing off action under the statute’s saving provisions, but registration confers the infringement action. The geographical indications pillar of this series owns the registration of authorised users and the enforcement provisions.

The Semiconductor Integrated Circuits Layout-Design Act, 2000 (Act 37 of 2000) protects the layout-designs of semiconductor integrated circuits. Registration creates the right, the term is ten years from the date of filing or from the date of first commercial exploitation, whichever is earlier, and the statute follows the international model for this subject matter. It is the least litigated of the six statutes and the least known, and its presence in the list is worth noting precisely because guides to Indian intellectual property law frequently omit it.

Where the six statutes came from

Each of the six statutes replaced an earlier law, and the lineage explains features of the present law that otherwise look arbitrary. A reader who knows what each statute replaced knows which parts of it are inherited structure and which parts are deliberate change.

Patent law in India began with an Act of 1856 modelled on the English law of the time, was recast in the Patents and Designs Act, 1911, and was then comprehensively replaced by the Patents Act, 1970 on the recommendation of the committee chaired by Justice N. Rajagopala Ayyangar, whose report of 1959 set the philosophy of the Indian system: patents are not regarded in India as a reward of nature but as instruments to be worked for the public benefit, and the 1970 Act accordingly refused product patents for food, medicines and chemicals, giving process patents only, with the object of keeping those goods cheap and available. That design held until the TRIPS transition, completed by the 2005 amendment, introduced product patents in those fields while keeping the safeguards the earlier philosophy had produced, including the compulsory licensing chapter and the provision against the evergreening of pharmaceutical patents that Section 3(d) came to embody. The patents cluster owns the argument; the lineage belongs here because the whole field’s pharmaceutical tension starts in 1959.

Copyright began in India under a statute of 1914 that applied the Imperial Copyright Act, and was replaced after Independence by the Copyright Act, 1957, which created the Indian framework of owners’ rights, the Copyright Board and the register of copyrights. The 1957 Act has been amended repeatedly, most substantially in 1994, when software was brought squarely within the literary work category and the rights in computer programmes were defined, and in 2012, when the amendments recast the position of authors against assignees, addressed cover versions and broadcasting, and strengthened the framework for copyright societies. The 2012 amendment trail has its own article in this series.

Trade mark law ran through a Trade Marks Act of 1940, then the Trade and Merchandise Marks Act, 1958, which created the modern register and the office of the Registrar, and then the Trade Marks Act, 1999, which extended registrability to service marks, provided for well-known marks, recognised collective and certification marks in a modern form, and laid the statutory foundation for the single appellate board across the registrable rights. Before 1999, services could not be registered as trade marks in India, which is why older accounts describe a field confined to goods.

Design law shared the 1911 Act with patents and was separated into the Designs Act, 2000, which adopted the classification of designs by class of article used internationally and recast the term and the cancellation machinery. Geographical indications had no Indian statute at all before 1999; protection existed only through passing off and through certification trade marks, and the 1999 Act was enacted partly to give India the registration system that TRIPS contemplated and partly as an instrument in the multilateral argument about how far geographical indication protection should extend. The semiconductor statute of 2000 was likewise a TRIPS-driven enactment, creating a registration system for a subject matter that Indian industry had not previously sought statutory protection for, which is part of the explanation for its thin litigation record.

The date pattern across the six statutes is itself instructive. Three of them, trade marks, geographical indications, designs and the layout-design statute, were enacted in 1999 and 2000, in the period when India was rebuilding its intellectual property statutes to the TRIPS standard ahead of the transition deadlines. Two, patents and copyright, are mid-century statutes that were amended into conformity instead of replaced. The field a reader meets is therefore a layered one: a 1957 and a 1970 framework, amended; a 1999 and 2000 framework, enacted; and a 2021 restructuring of the forums that hear both.

The industries that live on these rights

A thematic guide earns its place by showing where each right does its economic work, because the abstract definitions become clear when an industry is attached to them. The mapping that follows is a map of emphasis, not of exclusivity; every industry named uses several rights, and the point is which right carries the load.

In pharmaceuticals the load-bearing right is the patent, and the industry’s division between originator companies that develop new molecules and generic manufacturers that produce them after expiry is the division the patents cluster of this series is organised around. The originator position, stated by the research-based industry in its own terms, is that drug development is long, expensive and mostly unsuccessful, and that the twenty-year patent is the mechanism by which the cost of the failures is recovered from the successes. The generic position, stated in its own terms, is that the Indian industry was built on the 1970 Act’s process-only patent design, that it supplies affordable medicines to India and to much of the developing world, and that patent terms and secondary patents must be policed so that protection rewards invention rather than extension. Both positions are held by serious participants and both are represented in the litigation the cluster records; this guide takes no side in that argument, because its articles exist to give each side its strongest statement and the judgments their exact holdings.

In software and information technology the load-bearing right is copyright, because a computer programme is protected as a literary work under the Copyright Act and the protection covers the code’s expression. Patents enter at the margin, for computer-related inventions that produce a technical effect, and the boundary between a patentable technical contribution and an unpatentable programme as such is one of the contested lines the patent office’s examination guidelines address; the patents article in this series owns it. Trade marks carry the branding of platforms and applications, and the industry’s disputes are disproportionately about names, app store listings and domain names rather than about the code.

In film, music and publishing the load-bearing right is copyright in its layered form, with sound recordings, musical works, literary works and cinematograph films stacked in a single commercial product, and the collecting societies that license public performance are part of the machinery the copyright cluster describes. In manufacturing and consumer goods the load is shared between trade marks, which carry the brand, and designs, which carry the product’s appearance, with patents for the mechanisms inside. In agriculture and food the load falls on geographical indications for regional products and on the plant varieties statute for seed, and the two together are the field’s rural face. For a new venture of any kind the first intellectual property act is almost always a trade mark filing, because the name is the asset the market meets first and because the cost of changing a name after trading begins dwarfs the cost of registering it at the start.

The enforcement geography follows the industry map. The Delhi High Court’s division receives a disproportionate share of the country’s significant intellectual property litigation, because many rights holders and the head offices of many defendants are within its jurisdiction and because the plaintiff-side forum provisions of the copyright and trade marks statutes allow an owner to sue where the owner carries on business. Other commercial centres, Mumbai, Chennai, Kolkata and Bengaluru among them, carry substantial dockets of their own, and the commercial courts in those centres hear the suits that fall outside the High Courts’ original jurisdiction. A reader should therefore not equate the Delhi division’s prominence in reported decisions with the whole of the country’s practice; it is the best documented part of it, which is a different thing.

What this guide leaves to other clusters

Two further statutes touch the field and are owned elsewhere in this series, and this guide names them so that the map is complete. The Protection of Plant Varieties and Farmers’ Rights Act, 2001 is the sui generis statute India enacted for plant varieties, having chosen not to join the international convention for the protection of new varieties of plants. The agriculture cluster owns it, and this guide does not summarise its provisions. The access and benefit sharing provisions of the biological diversity statute, which govern the use of biological resources and associated traditional knowledge, belong to the environment cluster.

There is also a category of intangible asset that Indian law does not give a statute of its own: confidential information and trade secrets. Protection is available through contract, through the law of confidence as developed by the courts, and, in employment contexts, through restraint clauses subject to the law on restraint of trade. No registration exists for it, and no office administers it. A business whose real asset is a process its competitors cannot reverse-engineer should know that the field has no certificate to offer it, only the discipline of keeping the secret and the contracts that bind the people who know it. The discipline is not peculiar to business: how journalists keep a source sealed in a document vault rests on the same premise, that information stays protected only while access to it is controlled.

The international frame

India’s intellectual property law sits inside a web of treaties that shape both the statutes and the filing routes available to Indian applicants abroad. The position is best stated treaty by treaty, because each does a different thing.

The Agreement on Trade Related Aspects of Intellectual Property Rights, known as TRIPS, binds India as a founding member of the World Trade Organization, which came into being in 1995. TRIPS sets minimum standards of protection for patents, copyright, trade marks, designs, geographical indications and layout-designs, and it required India, as a developing country, to bring its statutes into conformity, with transition periods for product patents in pharmaceuticals and agrochemicals that expired at the start of 2005. The 2005 amendment to the Patents Act, which has its own article in this series, was the domestic legislation that completed that transition. TRIPS is the reason the field looks the way it does; almost every structural feature of the six statutes, from the twenty-year patent term to the protection of geographical indications, traces to it.

The Paris Convention for the Protection of Industrial Property, which India joined in 1998, gives applicants in member countries the right of priority: a patent or trade mark application filed in India can claim the date of an earlier filing in another member country if the Indian application is filed within the priority period, twelve months for patents and six months for trade marks. The Patent Cooperation Treaty, to which India acceded in 1998 with the treaty entering into force for India in December of that year, allows an inventor to file a single international patent application that preserves the right to seek patents in the member states, deferring the cost of national filings. The Patent Cooperation Treaty does not grant an international patent; it is a filing and search mechanism, and each designated office examines the application under its own law.

For trade marks, the Madrid Protocol concerning the international registration of marks, which India joined in 2013 with the protocol entering into force for India on 8 July 2013, allows a trade mark owner to seek protection in the member countries through a single international application filed through the home office, with each designated country examining the mark under its own law. The Budapest Treaty on the international recognition of the deposit of micro-organisms, which India joined in 2001, allows a patent applicant to satisfy the disclosure requirement for inventions involving micro-organisms by depositing the organism with a recognised depository.

For copyright, India has been a party to the Berne Convention since 1928, and it acceded in 2018 to the two internet treaties, the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty, which address the protection of works and of performances and phonograms in the digital environment. India is not a party to the Hague Agreement on the international registration of designs, and it is not a member of the international union for the protection of new varieties of plants, the UPOV system, having enacted its own sui generis statute for plant varieties instead.

The practical value of this frame for an Indian business is in the filing routes. A pharmaceutical company seeking patents in thirty countries uses the Patent Cooperation Treaty to defer and organise the national filings; a brand expanding abroad uses the Madrid Protocol to manage a portfolio through a single international registration; and a patent applicant whose invention involves a micro-organism uses the Budapest deposit to satisfy disclosure. None of these treaties creates a right enforceable in India on its own; each works through the domestic statute it connects to.

Who administers the field

The administration of intellectual property in India is centralised in two places. The Controller General of Patents, Designs and Trade Marks heads the office under which the patent offices, the trade marks registry, the designs office and the geographical indications registry function. The Copyright Office, which registers copyright and administers the copyright societies framework, was moved in 2016 from the human resource development ministry to the department for promotion of industry and internal trade, so that the whole of the industrial property administration and the copyright administration sit under one department. The verification flag in the brief asked for the current placement of the Copyright Office, and this is it: the department for promotion of industry and internal trade.

Registration practice under each office is governed by rules made under the parent statute: the Patents Rules, the Trade Marks Rules, the Designs Rules, the Geographical Indications Rules and the Copyright Rules. The fee schedules are prescribed by those rules and vary by category of applicant, with reduced fees for individuals, small entities and educational institutions under the patents and designs rules. The offices also publish examination guidelines and practice directions, and the patent office publishes an annual report recording filings, grants and pendency. The guide to each statute sets out the procedure before its office; this guide records only that the offices exist, what they do and where they sit.

The architecture of each statute, in headline form

A guide that names the statutes without sketching their internal shape leaves the reader unable to guess where a question belongs inside an Act. The sketches that follow are deliberately architectural: the divisions of each statute and the questions each division answers, without the provisions themselves, which belong to the pillar articles.

The Patents Act is built around the specification. An application is accompanied by a provisional or complete specification describing the invention and the claims that define the monopoly sought, and the grant procedure tests the claims against the prior art and against the Act’s exclusions in Section 3, which declare whole categories not to be inventions, from discoveries and scientific principles to mathematical and business methods, computer programmes as such, plants and animals, and methods of treatment. After grant, the Act polices the monopoly from three directions: the working requirement and the compulsory licensing chapter, which allow a licence to be sought when the patented invention is not worked in India or is not available at a reasonably affordable price; the revocation grounds; and the infringement suit with its defence of invalidity, which in India can be raised by counterclaim and results in the revocation question being decided by the court hearing the suit. The Bolar-type provision, which permits the making of a patented product for regulatory approval purposes so that a generic version can be ready when the patent expires, sits in the infringement provisions and is one of the Act’s deliberate flexibilities.

The Copyright Act is built around the bundle of rights. For each class of work it specifies the acts the owner alone may do: reproduction, issue of copies, public performance, communication to the public, adaptation and translation for works; reproduction and distribution equivalents for films and recordings. Around the bundle it builds the exceptions, in the long fair dealing and permitted acts provision that covers research, criticism, review, reporting, teaching, library and accessibility uses, and the licensing framework of voluntary licences, the licensing provisions administered after the Copyright Board’s abolition by the courts the amended Act names, and the copyright societies that collectively administer performing and reprographic rights. Ownership and term occupy their own chapters, and the moral rights provision stands apart from the economic bundle.

The Trade Marks Act is built around the register. Its early chapters define registrability and the grounds of refusal: absolute grounds, which refuse marks that cannot distinguish or that are descriptive, deceptive or offensive, and relative grounds, which refuse marks that conflict with earlier marks. The registration chapters run the application from filing through examination, advertisement and opposition to registration, and the later chapters deal with the registered user’s position, with rectification, with certification and collective marks, with the special protection of well-known marks, and with the infringement and passing off actions and the offences. A reader who holds that shape can locate almost any trade mark question: a question about whether a mark can be registered is a grounds question, about who may use it a register question, about stopping a copy an enforcement question.

The Designs Act is a short statute built around a single registration and its cancellation, with the Locarno classification organising designs by the class of article they are applied to, and with a notable boundary rule in the Copyright Act that links the two statutes: copyright in an artistic work that has been applied industrially by a design process and reproduced more than fifty times ceases in respect of that article, so that a creator must elect the design registration route for mass-produced articles. The geographical indications statute is built around its two-part register and the authorised user, and the semiconductor statute around its register and its innocent infringer protection, which shields a person who innocently uses a registered layout-design that was not marked or notified.

The constitutional frame again: treaties and property

Two constitutional features beyond entry 49 complete the frame. The first is Article 253, which empowers Parliament to legislate to implement international agreements notwithstanding the distribution of powers in the Seventh Schedule. Intellectual property does not need Article 253, because entry 49 already places the subject in the Union List, but the treaty connection explains the rhythm of the legislation: the amendments of 1999 to 2005 were Parliament legislating the TRIPS standards into statutes it already had the power to amend, and the treaty obligations operated as the timetable rather than as the source of competence.

The second is that intellectual property is property. Patents, copyright and trade marks are intangible movable property, assignable, transmissible and capable of being held by companies and trusts, and they engage the constitutional protection of property against deprivation save by authority of law. That character explains the field’s commercial plumbing: intellectual property is valued in company accounts, licensed for royalties that are taxed and remitted under the foreign exchange framework, used as security, and sold in insolvency, where it can be among the most valuable assets a failed company owns. A legal guide need not follow the money further, but it should record that the rights described here behave in commerce as assets in every sense, which is why their registration, ownership records and chain of title matter beyond litigation: a buyer of a business who discovers that the brand was never assigned by its founder’s earlier company has bought a problem that a register search would have shown.

The offices at work: registers, journals and published figures

A reader matching a creation to a right needs the next step in headline form as well: what the obtaining of the right looks like. The procedures differ in ways that matter, and the differences track the registration answer. Where registration creates the right, the office’s examination is the gateway to the right itself. Where it does not, the office’s role is recording rather than creating.

A patent is obtained by filing an application at the patent office, followed by publication, a request for examination, examination by the office against the statutory criteria, the answering of objections, and grant if the application survives. The Act provides two opposition windows: any person may oppose before grant, and a person interested may oppose within a year after grant. Revocation after that point is a court proceeding. The applicant who has only filed has a pending application and nothing else, and the distinction between an application and a granted patent is the distinction between a hope and a right. Renewal fees keep the patent alive during its twenty-year term; a patent that is not renewed lapses and can be restored only within the statutory window and on the statutory conditions.

A trade mark is obtained by filing an application at the trade marks registry, followed by examination, advertisement of the mark in the trade marks journal, a period during which any person may oppose the registration, and registration if no opposition succeeds. Use of the mark before filing is not required, though an applicant who has used the mark can claim the earlier date. The registry maintains the register of trade marks, and rectification of the register, by removal of a mark that should not have been registered or that has not been used, is the proceeding that polices it.

A design is obtained by filing an application at the designs office, with representations of the design as applied to the article, followed by examination and registration. The design is registered with effect from the date of the application, and the proprietor marks the article with the registration particulars. Cancellation of a registration, on the ground that the design was not new or had been published earlier, is a proceeding before the Controller with the appeal structure described in the forum section of this guide.

A geographical indication is obtained differently, because the applicant is not a single trader. An association of producers or an organisation representing them applies to the geographical indications registry, the application is examined and advertised, opposition is possible, and on registration the producers are entered as authorised users. The register has two parts, one for the indication and one for the authorised users, and the distinction between the two entries is the distinction between the right and the people entitled to exercise it.

Copyright registration is voluntary. An owner who chooses to register files an application at the Copyright Office and, after the statutory waiting period for objections, obtains an entry in the register of copyrights. The entry is evidence, not the right. An owner who never registers loses nothing in the subsistence of the right, though a court will find the register entry convenient proof of ownership and date.

A semiconductor layout-design is registered at the dedicated registry on application and examination, and the register records the date of filing or of first commercial exploitation, because the term runs from the earlier of the two.

Two features of this machinery are worth fixing, because they explain much of the cost and time discussion that follows in this guide. The first is that every registrable right passes through a public opposition or objection window before or shortly after it is secured, so the register is not a mere record of filings; it is the residue of a screened process. The second is that the offices’ examination capacity determines the pace of the whole field, and the pendency at the patent and trade marks offices has been a standing subject of the Controller General’s annual reports and of parliamentary questions. A guide can describe the route; the queue on the route is an administrative fact that changes with the office’s staffing and digitisation, and readers should take queue lengths from the office’s own published figures rather than from any article.

The treaties in practice: priority, routes and flexibilities

Three practical questions recur about the international frame, and a guide that only lists the treaties leaves them unanswered. The first is what priority actually does in a filing programme. The second is what the filing routes change and what they leave alone. The third is what room the frame leaves India to legislate differently, which is where the standards meet the flexibilities.

Priority works as a dating device. An inventor who files first in one Paris Convention country has twelve months to file in others while keeping the benefit of the first date for the purposes of novelty and competing applications. A trade mark owner has six months. The mechanism matters because publication and disclosure are the enemies of patentability: an invention described in a journal article or an earlier foreign filing can be cited against a later application, and priority takes the applicant’s own earlier filing out of that firing line. The Patents Act gives effect to priority through its convention application provisions, and the trade marks statute does the same for convention applications for marks.

The filing routes change logistics, not standards. The Patent Cooperation Treaty route means one international application, an international search, and then entry into the national phase in each chosen country, where the national office examines under national law. The Madrid Protocol route means one international registration designating countries, each of which examines under its own trade marks law and may refuse. In both systems the Indian office is both a door out, for Indian applicants going abroad, and a door in, for foreign applicants designating India. In neither system is there a world patent or a world trade mark at the end; there is a bundle of national rights obtained through a shared corridor.

The flexibilities are the part of the frame that the domestic debate is about. TRIPS permits compulsory licensing of patents on grounds each member may specify, and India’s Patents Act contains a full compulsory licensing chapter, including a provision for national emergency and public health circumstances and a special provision for the manufacture and export of patented pharmaceutical products to countries with insufficient manufacturing capacity. The Doha Declaration on TRIPS and public health confirmed that members may use those flexibilities to protect public health. TRIPS also permits members to exclude certain subject matter, and India’s Section 3 exclusions, including Section 3(d) on new forms of known substances, sit in that space, which is why the Novartis judgment in this series is simultaneously a domestic construction exercise and a statement of India’s position within the treaty frame. The patents cluster owns that ground. What belongs to this guide is the structural point: the treaty sets floors, not ceilings, and the distance between the floor and the Indian statute is where Indian intellectual property policy is made.

There is also a border to the frame that a guide should mark. India protects geographical indications through a registration statute, while some trading partners protect them through trade mark systems, and the TRIPS provisions on geographical indications, with their additional protection for wines and spirits and the unresolved multilateral register question, are among the longest-running negotiations in the World Trade Organization. India’s position in those negotiations, favouring the extension of the higher level of protection to products other than wines and spirits, is a trade policy position that the geographical indications article in this series records. It is noted here because a reader who meets only the domestic statute will miss that the Indian statute was written partly as a negotiating instrument.

The offices at work: registers, journals and published figures

The intellectual property offices are record-keeping institutions as much as examining ones, and the records they keep are the working tools of the field. The register of patents records grants, assignments, licences and renewals, and the patent office publishes the official journal in which applications are published and grants are notified. The register of trade marks and the trade marks journal perform the same functions for marks, and a search of the register is the standard first step before a new brand is adopted, because the register shows not only identical marks but the field of similar marks that an examiner or an opponent will rely on. The register of copyrights records the voluntary registrations, the register of designs records registered designs by class, and the geographical indications register records the indications and their authorised users in its two parts. Public search facilities for the principal registers are maintained by the office of the Controller General, and the state of a right, whether it is alive, renewed, assigned or lapsed, is in principle discoverable from them.

The offices also generate the field’s published statistics, in the annual report of the Controller General of Patents, Designs and Trade Marks, which records applications, examinations, grants and disposals office by office. Those figures are the proper source for any statement about pendency or grant rates, and this guide deliberately makes no such statement in numbers, because the figures change annually and a figure quoted from a superseded report is worse than no figure. The durable statements are structural: filings in patents and trade marks have grown over the long term, the trade marks registry carries the largest filing volume of the offices, and the examination backlog has been a recurring subject of the annual reports and of parliamentary scrutiny. A reader who needs the numbers should take them from the annual report for the year in question and attribute them to it.

Administration includes one policy instrument worth naming. The National Intellectual Property Rights Policy of 2016 set out the government’s framework for the field across awareness, generation, legal framework, administration, commercialisation, enforcement and human capital, and the Cell for Intellectual Property Promotion and Management was created to implement it. The policy is an executive framework rather than law, and its significance for a legal guide is that it explains the office-side drives of the period, including the push to digitise filings, reduce examination pendency and expand awareness programmes in educational institutions. The legal content of the field remained where this guide has placed it: in the six statutes, the rules under them and the decisions of the courts.

Disputes beyond infringement

Infringement suits are the visible part of intellectual property litigation, but a large share of the field’s disputes never allege infringement at all, and a guide that maps only the suits misleads. The disputes fall into four families.

The first family is the office dispute: the examination objection, the opposition to an application, and the hearing before the office. Oppositions are full contested proceedings conducted by post and by hearing, with evidence by affidavit, and they decide whether the right comes into existence at all. Most applications that are refused or opposed end in this family and never reach a court.

The second family is the register dispute: rectification of the trade marks register, cancellation of a design registration, revocation of a patent and rectification of the geographical indications register. These proceedings attack a right that exists, on grounds that it should not have been granted or should not remain. It was this family, together with appeals, that formed the abolished board’s docket, and it is this family that the High Courts inherited in 2021.

The third family is the infringement and passing off suit, with its interim injunction practice, and the fourth is the contractual and employment dispute that uses intellectual property as its subject matter: the contested assignment, the licence royalty claim, the employee’s invention and the departing employee’s knowledge. The fourth family is heard as ordinary commercial litigation and rarely appears in intellectual property reports, but it is where many businesses actually litigate their intangible assets.

Keeping the four families apart matters for the forum question with which this guide is concerned. The 2021 change moved the second family and the appellate side of the first from the board to the courts. It did not move the suits, which were always in the courts, and it did not move the office proceedings, which remain with the offices. A description of the reform as transferring intellectual property to the High Courts is therefore loose: what transferred was the appellate and register-cleansing jurisdiction, and the infringement jurisdiction was already judicial.

The forum change: a board built, a board abolished

The structural finding of this guide is a story in three acts, and it is the reason the guide exists. A specialist appellate body was created to take intellectual property out of the ordinary courts. It was abolished for being slow. Its work went to the High Courts, which promptly created specialist intellectual property divisions with their own rules, including a separate procedure for patent suits. The expertise the tribunal was meant to supply was reconstituted inside the court within months of the tribunal’s abolition.

The first act was the creation of the Intellectual Property Appellate Board. It was constituted in 2003, under the Trade Marks Act, 1999, as the appellate forum for appeals against the decisions of the Registrar of Trade Marks, and its jurisdiction was later extended to appeals from the Controller of Patents, to revocation and rectification applications under the patents and trade marks statutes, and to appeals from the Registrar of Geographical Indications. Its benches included technical members for patent matters, and it sat principally at Chennai with circuit benches elsewhere. Alongside it, the Copyright Act had its own Copyright Board, constituted under Section 11 of that Act, which heard appeals from the Registrar of Copyrights and decided licensing disputes. For nearly two decades, then, an applicant refused a patent appealed to the board, a proprietor whose trade mark was opposed appealed to the board, and a party aggrieved by a copyright decision went to a different board.

The second act was the abolition. On 4 April 2021 the President promulgated the Tribunals Reforms (Rationalisation and Conditions of Service) Ordinance, 2021, which abolished the Intellectual Property Appellate Board and the Copyright Board, among several other tribunals, and amended the intellectual property statutes to substitute the High Court for the board. The ordinance was later enacted as the Tribunals Reforms Act, 2021 (Act 33 of 2021). Under the substituted provisions, appeals from the Controller of Patents lie to the High Court, as do appeals from the Registrars of Trade Marks and Geographical Indications, and revocation and rectification applications are made to the High Court. Appeals from the Registrar of Copyrights lie to the Commercial Court or the Commercial Division of the High Court, the copyright statute having been amended differently from the others. Nearly three thousand matters that were pending before the board were transferred to the Delhi High Court alone, with others going to the High Courts having jurisdiction over the offices concerned.

The government’s stated reasons, set out in the statement accompanying the ordinance, were that the tribunals had not delivered justice more quickly than the courts and had not reduced the burden on the exchequer, and that the analysis of data for the preceding three years showed the tribunals contributing little to the disposal of cases. That is the official case for abolition, and it should be stated in its own terms: a tribunal that does not decide faster and does not cost less than the court it replaced has failed the only test its creation set for it.

The case against abolition was also made at the time, and it too deserves its own terms. The board had suffered prolonged vacancies, including of its chairperson, and for long periods it lacked technical members, so the delays criticised were the product of understaffing by the same government that abolished it. A generalist court hearing a patent revocation needs technical understanding that a specialist body was designed to supply. The High Courts were already carrying heavy dockets. And abolishing a tribunal because it was under-resourced rather than resourcing it addresses the symptom rather than the cause. Practitioners also pointed to the years in which the board was effectively non-functional because no chairperson had been appointed, and argued that the failure was an appointment failure rather than an institutional one.

Between those two cases sits an observation that this series has made in other clusters. The series has traced tribunalisation across insolvency, tax, environment and water, and has found tribunals created to relieve courts and then delayed, understaffed or dependent. The account of how a specialist tribunal can be designed to fail by starvation, and of the parallel history in the company law field, is set out in the guide to the National Company Law Tribunal and its appellate tribunal at the point where tribunalisation is discussed. This cluster is the first instance in the file of the movement running the other way: the work was not left with a weakened tribunal but returned to the courts, and the specialisation returned with it in a different institutional form.

The third act was the judicial response. In Delhi, the Chief Justice constituted a committee of two judges of the court, Justice Pratibha M. Singh and Justice Sanjeev Narula, to recommend how the transferred and fresh intellectual property work should be handled. On the committee’s recommendation the Chief Justice issued an office order on 7 July 2021 creating an Intellectual Property Division of the Delhi High Court, the first such division in the country, to hear infringement suits, appeals from the intellectual property offices, revocation and rectification petitions and related writ petitions. On 24 February 2022 the court notified the Delhi High Court Intellectual Property Rights Division Rules, 2022 and the High Court of Delhi Rules Governing Patent Suits, 2022, which lay down procedures for the division, including claim construction briefs, invalidity briefs and the joint filing of a technical primer so that the court is equipped with the basic science before the first case management hearing. Other High Courts have since made their own arrangements for intellectual property work, by constituting benches or divisions for it or by assigning the transferred matters to nominated judges, and the position varies by court, which is why this guide describes it structurally rather than as a list.

Alongside the division, the Commercial Courts Act, 2015 had already made intellectual property suits commercial disputes, subject to that Act’s case management discipline and defined timelines, with the Commercial Divisions of the High Courts hearing suits above the specified value. The combined effect is that an intellectual property dispute in India is heard either by a commercial court or by the High Court, and, in Delhi, by a division of the High Court built for the purpose.

The remaining question the forum change raises is the one the courts have had to work out case by case: what happens to matters that moved mid-stream. Matters that were part-heard before the board, matters in which the board had reserved orders, and matters in which a party had a pending rectification application alongside a pending infringement suit have each required the receiving court to decide how the transferred file is to be dealt with. The Delhi High Court’s rules provide for the transfer and listing of the board’s pending matters, and the courts have generally proceeded on the footing that the transferred matters continue from the stage they had reached, with the parties at liberty to supplement their material. This is a procedural detail with a practical consequence: a party whose rectification petition was filed years ago before the board should not assume the petition has lapsed, and should check the receiving court’s cause list for its transferred number.

One further consequence of the abolition deserves recording, because it is the point on which published guidance is most often stale. Sources that describe the Intellectual Property Appellate Board as the appellate forum for patents, trade marks and geographical indications, or the Copyright Board as the forum for copyright appeals, describe a system that ended on 4 April 2021. The appellate forums are the High Courts for patents, trade marks, designs and geographical indications, and the Commercial Court or the Commercial Division of the High Court for copyright. Any filing made on the strength of the older guidance will be returned or will have to be re-presented, and the fee and limitation consequences fall on the party that relied on it. The description in this guide is of the forums as the statutes constitute them, and it is a description of how the forums are organised, not advice on where to file any particular matter.

The substitution, statute by statute

Because the abolition was effected by amending each statute, the destination of an appeal depends on which statute the order under challenge came from, and the pattern is not uniform. Stating it statute by statute is the surest way to avoid the error of assuming that every appeal goes to the same place.

Under the Patents Act, 1970, appeals against the orders of the Controller of Patents, which Section 117A of the Act had routed to the Appellate Board, lie to the High Court, and the petitions for revocation of a patent that the board heard are filed in the High Court. Under the Trade Marks Act, 1999, appeals against the Registrar of Trade Marks, which Section 91 had routed to the board, lie to the High Court, and applications for rectification of the register that were made to the board are made to the High Court; rectification applications that arise inside an infringement suit continue to interact with the suit in the way the trade marks article in this series describes. Under the Geographical Indications Act, appeals from the Registrar and rectification applications follow the same pattern to the High Court. Appeals under the Designs Act from the Controller of Designs lie to the High Court. The copyright statute was treated differently: appeals from the Registrar of Copyrights lie to the Commercial Court or to the Commercial Division of the High Court, and the functions of the Copyright Board were redistributed by the same amending measure, with the royalty and licensing jurisdiction that the board exercised passing to the courts the amended statute names.

The plant varieties statute, which sits in the agriculture cluster, had its own appellate tribunal, and its appeals were likewise redirected to the High Courts, which is worth recording because it means the 2021 measure swept the whole of the intellectual property appellate structure and not merely the board that carried the field’s name.

Two consequences follow for anyone reading older material. The first is citational: a large body of board jurisprudence exists, and those decisions are cited to the courts as persuasive material from the specialist forum that decided them, but the board itself decided its last case in 2021. The second is procedural: limitation and forum for any fresh appeal run from the amended statutes, and an appeal drafted against the board’s address will fail at the registry counter.

What the divisions did with the work

The Delhi experience deserves a fuller account because it is the worked example of the reform’s success depending on judicial initiative. The transferred load was close to three thousand matters in one court. The two-judge committee whose recommendations produced the division examined the practice of intellectual property courts in other jurisdictions, and the office order that followed created a division that takes the whole of the court’s intellectual property work: infringement and passing off suits, appeals from the four offices, revocation and rectification petitions, and the writ petitions and appeals that arise from intellectual property orders of the commercial courts.

The rules notified in February 2022 then did the part that a mere roster change cannot. They prescribe how proceedings before the division are to be named and numbered, they require in patent suits the early exchange of claim construction positions, infringement and invalidity contentions and damages briefs, and they provide for case management hearings at which the court fixes the trial schedule. The Patent Suits Rules add the technical primer, a document the parties prepare jointly to place the basic science before the court, and they make provision for the court to appoint scientific advisers and to record expert evidence by the concurrent method known as hot-tubbing, in which the experts are examined together. The point of those devices is the point the tribunal was created to serve: a generalist judge deciding a patent revocation needs the technology explained in a structured way, and the rules build the explanation into the procedure.

Other High Courts have answered the same problem in their own ways, some by constituting intellectual property divisions or benches and others by assigning the transferred matters to nominated judges within their commercial divisions. The structural position is therefore uneven across the country in a way the board system was not: a litigant in Delhi has a division with dedicated rules, and a litigant elsewhere has the arrangements of the court that holds the office concerned. Whether that unevenness settles into a set of comparable divisions or remains a Delhi particularity is an open institutional question, and it is the question on which the long-term verdict on the 2021 reform will turn.

There is a further interaction that practitioners noticed early and that a guide should record. An infringement suit and a revocation petition about the same patent or mark can run in the same court, and in Delhi in the same division, whereas the board system split them between court and tribunal and generated the jurisdictional conflicts the abolition case invoked. Consolidation does not guarantee speed, but it removes a category of parallel proceeding that the old structure made unavoidable.

Cost and time

The cost question is the one searchers ask most plainly and the one that honest writing answers least precisely, because the cost of protecting an intellectual property right in India has three separate components that are routinely run together. The first is the official fee, which is prescribed by the rules under each statute and is the smallest part of the total. The second is the agent’s or attorney’s charge for preparing, filing and prosecuting the application, which varies widely by firm and by the complexity of the matter. The third, and the largest where it arises, is the cost of contested proceedings: oppositions, rectifications, revocations and infringement suits.

What can be stated without invention is the shape of the system rather than a single figure. The official fees are set by the fee schedules to the rules and differ by the category of the applicant, with individuals, start-ups, small entities and educational institutions paying less than other applicants under the patents and designs rules. Prosecution time varies by office and by right: a trade mark application that attracts no objection and no opposition moves far faster than one that is opposed, and the opposition, once filed, is itself a contested proceeding with pleadings, evidence and a hearing. The pre-grant and post-grant opposition windows under the Patents Act mean that a patent application can be opposed before grant and again within a year after it, and each opposition extends the time to an enforceable right. Anyone budgeting for protection should therefore budget for the contested case rather than the clean one, and should attribute any precise figure they are quoted to the firm quoting it and the date of the quote, because fee schedules are revised by notification and agent charges are market prices, not statutory ones.

The forum change bears on time as well. The Delhi High Court’s Intellectual Property Division Rules and the Patent Suits Rules were made to compress the procedural stages of intellectual property litigation, with timelines for the completion of pleadings and inspection and a case management hearing at which the court fixes the schedule for the suit. The Commercial Courts Act adds its own discipline, including strict timelines for written statements and case management hearings, and the summary judgment procedure. Whether the transferred board matters move faster in the division than they did before the board is a question the disposal figures will answer over time; what the legislation and the rules have supplied is a procedure designed to make them move faster, which is a different and more limited claim.

Before filing: searches and judgment calls

The step that precedes every application is a search, and the search is where the field’s registers do their first work for a filer. Before a brand is adopted, the trade marks register is searched for identical and similar marks in the relevant classes, the common law sources are searched for unregistered users, and the domain and company name registers are checked, because a mark that survives the registry can still collide with a trader who never registered. Before a patent application is filed, the prior art is searched, in patent databases and in the scientific literature, and the search decides the real question, which is not whether the invention works but whether it is new in the documentary record of the whole world. Before a product is launched with a new appearance, the designs register is searched, though the search there answers only part of the question, because a design can be invalidated by a publication in a trade catalogue that no register records.

The judgment calls are as standard as the searches. Whether to file at all, where the invention could be kept secret. Whether to file first and disclose, or disclose and lose the design and patent options. Whether to seek registration in India first and use the priority year, or file abroad first and claim priority back. Whether to oppose a competitor’s application, knowing that opposition is a proceeding with costs and evidence, or to wait and attack the registration later by rectification. A guide cannot make those calls for a reader, and this one does not try. It records that the calls are made at the start, under time pressure created by the priority periods and the publication rules, and that they are the point at which the map in this article is converted into a sequence of filings.

One dispute, two systems

The forum change is most clearly seen by following a single kind of dispute through both systems. Take the owner of a registered trade mark who discovers that a competitor has obtained registration of a confusingly similar mark, and who wants the competitor’s registration removed from the register. The application is a rectification, on the ground that the entry was made without sufficient cause or wrongly remains on the register.

Under the board system, the owner filed the rectification before the Intellectual Property Appellate Board, the registry of the board issued notice, the competitor answered, evidence was filed by affidavit, and the board, sitting with a judicial and, where the matter required, a technical member, heard and decided it. If the same owner was also suing the competitor for infringement in a High Court, the two proceedings ran in parallel in different buildings, and the interaction between them, including the requirement that the court’s satisfaction be obtained about the prima facie tenability of the rectification plea before the suit could proceed on that footing, generated a satellite jurisprudence of its own.

Under the court system, the owner files the rectification in the High Court, and in Delhi before the Intellectual Property Division, where the infringement suit between the same parties over the same marks is also pending, and the two are heard within one institution under rules written for the field. The owner’s appeal against a refusal of the owner’s own application travels to the same place. The competitor’s counter-allegations, the registrar’s record and the parties’ evidence are marshalled under the division’s case management, and the judgment decides validity and infringement between the same parties without the jurisdictional hand-offs of the earlier structure.

The example is a trade mark example, but the pattern repeats for the patent owner whose patent is attacked by revocation while an infringement suit pends, and for the producer group whose geographical indication registration is sought to be rectified. In each case the 2021 change collapsed two institutions into one for the disputes that matter most, and that collapse, rather than the abolition in the abstract, is the change a litigant experiences. It is also the change the abolition’s defenders pointed to when they spoke of parallel proceedings, and the change its critics answered by asking whether the receiving courts had been given the members, the registries and the time that the work requires. In Delhi the court answered that question for itself. Elsewhere the answer is still being assembled, court by court, and the honest map shows both the design and the unevenness.

Why applications fail

The offices refuse more than they grant contested ground on, and the grounds of failure are the mirror image of the rights themselves. A guide that lists the conditions of each right without the failure modes leaves the reader with the impression that filing is a formality. It is not, and the failure modes are consistent enough across the field to be mapped together.

Patent applications fail on the prior art: the examiner finds the invention in an earlier publication or patent, or finds it obvious over what was known, and the application is refused unless the claims are amended to the narrower invention that survives. They fail on the exclusions: the subject matter falls within Section 3, as a business method, a programme as such, a presentation of information or a new form of a known substance without enhanced efficacy. They fail on disclosure: the specification does not describe the invention fully enough for a skilled person to perform it, or the claims reach beyond what the specification teaches. Each failure mode corresponds to a pillar topic, and the patents article owns them; the map records that refusal, not grant, is the outcome the prosecution process is designed to test for.

Trade mark applications fail on the absolute grounds, because the mark is descriptive of the goods, or is a term traders need to use, or deceives the public, or is contrary to law or morality, and on the relative grounds, because an earlier mark stands in the way. Design applications fail because the design was published before the application, in India or elsewhere, which is why the timing of disclosure before filing destroys the right in a way it does not for copyright: the design system rewards the applicant who files before the product is shown, and the copyright system protects the work whenever it was made. Geographical indication applications fail where the name has become generic for the product or where the link between the product’s qualities and the place cannot be shown. Copyright registrations are refused where the work is not original or where the applicant is not the owner, though refusal of registration leaves the underlying copyright, if it subsists, untouched.

Two lessons follow for the map. The first is that the examination stage is where the field’s substantive law does most of its quiet work, and the reported case law, which is mostly litigation, is the visible tip of a much larger administrative practice. The second is that the appellate forum matters most often not for the celebrated cases but for the steady stream of refusals, because every refused applicant in the country, after 2021, takes the appeal to a High Court.

India in the international traffic of the field

The treaties section of this guide described the corridors. The traffic through them runs in both directions, and its shape is part of the field’s description. Foreign applicants are the majority of patent filers in India, entering through the Patent Cooperation Treaty’s national phase, and Indian applicants, universities, public research institutions and companies among them, use the same corridor outward. The Indian Patent Office has been recognised as an International Searching Authority and an International Preliminary Examining Authority under the treaty since 2013, which means the Indian office itself performs the international search for applications in the system, a marker of the office’s standing that sits oddly beside the pendency complaints recorded elsewhere in this guide and is worth recording for exactly that reason.

For trade marks, the Madrid Protocol traffic is likewise two-way: foreign brand owners designate India in international registrations, and the Indian registry examines those designations as it examines national applications, while Indian owners file outward as their markets expand. For copyright there is no filing traffic at all, because the Berne system works by automatic protection: a work created in a member country is protected in India, and an Indian work abroad, without registration in either direction, which is why the copyright pillar of this series has no international filing section and the patents and trade marks pillars cannot avoid theirs.

The political traffic runs alongside the filing traffic. India’s positions in the World Trade Organization’s TRIPS Council, on geographical indication extension, on the relationship between TRIPS and the Convention on Biological Diversity, and on public health flexibilities, are the external face of the domestic statutes, and the access and benefit sharing provisions of the biological diversity statute, owned by the environment cluster, are the domestic instrument of one of those positions: an applicant seeking a patent on an invention based on Indian biological resources must disclose and, where the statute requires, obtain the approval of the National Biodiversity Authority, a requirement that has generated its own line of patent office practice. A reader who files or advises in this field ignores that junction at the cost of an application stalled on a ground that belongs to another cluster’s statute, which is the practical justification for a series that maps clusters against each other at all.

Traditional knowledge and defensive protection

One Indian institution belongs in any map of this field even though it is not a right, a statute or an office for applicants. The Traditional Knowledge Digital Library, created in 2001 as a collaboration between the Council of Scientific and Industrial Research and the department responsible for the Indian systems of medicine, records formulations from the Ayurvedic, Unani and Siddha texts in a classified, multilingual database and makes the record available to foreign patent offices under access agreements. Its purpose is defensive: patent examiners abroad, faced with an application claiming a use of turmeric, neem or another substance documented in the classical texts, can find the prior art and refuse the claim, instead of granting a patent that India then has to challenge.

The library exists because of a small number of famous cases. A patent granted in the United States on the wound-healing use of turmeric was revoked on re-examination after the Indian authorities produced the classical documentation, and a European patent on a neem-based fungicide was revoked after a long opposition in which the Indian side proved prior use. Those episodes taught a structural lesson that the guide should record: the prior art that defeats a bad patent may exist only in Sanskrit texts and regional practice, invisible to an examiner searching English-language patent databases, and the remedy is to build the record in a form the examiner can search. Defensive publication of that kind protects the commons without creating any private right, and it sits in the field as the counterpart to the six statutes: where they grant rights to identified owners, the library prevents rights from being granted over what was never new.

The life of an application, stage by stage

Because cost and time follow the stages, the stages deserve a plain account at the level of the whole field. A patent application begins with filing, provisional or complete, and is published in the patent journal after the statutory period unless secrecy directions apply. Examination is not automatic: the applicant must request it within the period the Act allows, and the request can be expedited for the categories of applicant the rules specify, including start-ups, small entities and certain others. The examiner issues a first examination report, the applicant responds and may be heard, and the application is then granted or refused, with pre-grant opposition open throughout and post-grant opposition for a year after grant. Renewal fees run annually from the third year, and the patent lapses if they are not paid, subject to restoration on the conditions the Act prescribes. An appeal against refusal lay to the board before 2021 and lies to the High Court after it, which is the single most common point at which an applicant meets the forum change this guide describes.

A trade mark application is examined, accepted, advertised, opposed or registered in a corresponding rhythm, and a design application moves from filing to examination to registration with no opposition stage of the patent kind, its contest coming later by cancellation. A copyright registration follows its own waiting period for objections before entry in the register. The common feature worth retaining is that each office proceeding is a self-contained administrative contest with its own appellate exit, and the exits, after 2021, lead to the courts mapped in this guide. The uncommon feature is the spread of outcomes: the same office that registers a mark in a straightforward case in a reasonable period can take years over an opposed application, because the opposition converts a filing into litigation. Any statement of how long protection takes that does not separate the opposed from the unopposed case is meaningless, and that separation, more than any average, is the practical knowledge a filer needs.

Intellectual property in everyday transactions

The rights also appear where no dispute exists, in transactions whose documents allocate them. A franchise agreement is, in substance, a trade mark licence with operating conditions attached, and its value stands or falls with the franchisor’s registered mark. A publishing contract assigns or licenses copyright for stated modes and periods, and the 2012 amendments changed the default positions in such contracts in ways the copyright article in this series records. A film’s distribution and satellite and streaming exploitation is a chain of copyright licences layered over the assignments that assembled the film’s rights in the producer. A software services company’s contracts allocate the copyright in the code it writes, and the allocation is frequently the most valuable clause in the agreement. A merger or an investment prices a target’s portfolio, and the due diligence that supports the price is a register exercise: verifying that the marks are registered and renewed, that the patents are in force, that assignments from founders, employees and contractors are recorded, and that no oppositions or rectifications are pending against the assets being bought.

That transactional life is the reason this guide has treated the registers as institutions in their own right. The register is not only the route to a right and the record of a dispute; it is the ledger on which the commercial value of the rights is read by everyone who lends against, buys or invests in the businesses that own them.

One product, several rights

The last substantive point this guide makes is the one the One Test for this cluster is built on: a single creation can carry several rights at once, and the reader should be able to say which of them applies. A new soft drink is the standard example. Its name and label are trade marks. The artwork on the label is a copyright work. The shape of the bottle, if it is new and appeals to the eye, is a design. The drink’s formula, if it is kept secret, is protected only by confidence and contract; if the formula were a new and inventive technical solution, it could in principle be the subject of a patent application, though patenting it would require publishing it, which is why most formulae are never patented. If the drink is tied to a region with a reputation for the product, a geographical indication could in time be registered for the regional producers collectively.

Each of those rights has a different owner question, a different term, a different office and a different forum for disputes. The question of which right to use for a given creation, and how the three principal rights compare when a creator must choose between them, is the comparison that a later article in this series owns and that this guide does not attempt. Readers who need that choice made for a specific creation should go to the comparison of patent, copyright and trade mark protection, which owns those questions. This guide’s business is the map: which statute exists, what it covers, whether registration creates the right, how long the right lasts, who grants it and where a dispute is heard.

Enforcement against online infringement

A modern guide must say, at headline level, how the framework meets the internet, because a large share of intellectual property infringement that businesses complain of is online. Three mechanisms carry the load, and none of them belongs to a single statute, which is why they are described here rather than in any pillar article.

The first is the injunction that adapts. In litigation against pirate websites, the Delhi High Court has granted injunctions that are not confined to the specific addresses before the court but extend, on affidavit evidence, to mirror and redirect sites that reproduce the same infringing operation, the device that came to be called the dynamic injunction, developed in the litigation brought by film and broadcasting right holders including UTV Software Communications against streaming piracy sites. The mechanism matters structurally: it treats the injunction as an order against an operation rather than against a list of addresses, and it was built by the court in decided cases rather than enacted by Parliament.

The second mechanism is the domain name. A domain that reproduces a trade mark is dealt with either as an infringement and passing off suit in the courts, or through the dispute resolution policy for the Indian country code domain, the .IN Domain Name Dispute Resolution Policy administered through the national registry, which provides an arbitration route that can cancel or transfer the domain. Neither route registers anything; both police the use of names in the addressing system, and the choice between them is a choice between a full suit with its remedies and a narrower proceeding confined to the domain itself.

The third mechanism is the intermediary channel. Right holders notify platforms and intermediaries of infringing content, and the information technology framework’s intermediary provisions interact with the copyright statute’s notice provisions, including the copyright rule that requires an intermediary, on a valid complaint, to take down content for a defined period pending a court order. That interaction is contested ground owned by the technology cluster of this series as much as by this one, and the guide marks it rather than settles it: the practical point for the map is that a right holder with an online infringement problem works simultaneously through the court injunction, the platform notice and, for imported physical counterfeits, the customs recordal, and the three channels are complements rather than alternatives.

The wider tribunal story, and this cluster’s place in it

This series has followed the tribunal experiment across the Indian statute book, and the intellectual property chapter is its clearest reversal. The pattern elsewhere has been a tribunal created to relieve the courts, given too few members, too little infrastructure and too contested a jurisdiction, and then criticised for the delay that the starvation produced. The insolvency cluster showed a tribunal system that worked because it was staffed and because a new code stood behind it. The tax, environment and water clusters showed the other pattern. Intellectual property is the file’s first case of abolition followed by reconstruction: the board was wound up, its jurisdiction returned to the courts, and the busiest receiving court rebuilt the specialisation inside itself, with rules, within eleven months of the abolition.

That sequence has a lesson the series records without overstating. The failure the government identified, that the board did not deliver speed, and the failure the critics identified, that the board was left without a chairperson and technical members for long stretches, are not rival explanations; they are the same explanation read from opposite ends. A specialist forum is a capacity decision before it is a design decision. The High Courts’ divisions are subject to the same arithmetic: a division that is given judges, staff and rules decides cases at a rate that justifies its existence, and one that is a roster label on an unchanged docket will reproduce the board’s history under a different name. The verdict this article takes, on the record available, is the limited one the brief directs: in the Delhi High Court the outcome has been better than the criticism predicted, because that court built a specialist division with its own procedure, which means the reform’s success has depended on judicial initiative rather than on the legislation that abolished the board. The legislation supplied an ending; the court supplied the institution.

For the reader of the series, the cluster also closes a loop. The tribunalisation thread asked whether moving disputes out of the courts improves them. This cluster’s answer, on its own facts, is that the expertise follows the workload rather than the building: take the work out of a specialist board and the court that receives it becomes, by necessity and by its own choice, a specialist court. Whether that is a vindication of abolition or an indictment of the years in which the board was left unstaffed is a judgment the two cases stated in this guide leave open, and the guide leaves it open deliberately.

Public interest overrides across the field

Every right in this field is a private monopoly granted by the state, and each statute reserves the state’s powers against it. The reservations share a shape, and a guide should state the shape because it is the part of the architecture that general readers most often miss entirely: the right is never absolute, and its terms are set by the statute that grants it.

The Patents Act reserves the most. The government may use an invention for its own purposes, and in defined circumstances acquire it. The compulsory licensing chapter allows any person interested, after three years from grant, to seek a licence on the grounds that the reasonable requirements of the public have not been satisfied, that the invention is not available at a reasonably affordable price, or that it is not worked in India, and a separate provision addresses national emergency and public health need. A special provision permits manufacture for export to countries lacking manufacturing capacity. Those provisions are the domestic expression of the TRIPS flexibilities, and the one compulsory licence granted under them, in the litigation over a patented cancer drug, is the working example the patents cluster examines. Alongside compulsion sits the Bolar-type permission, which lets competitors prepare a regulated product for approval during the patent term so that competition can begin on expiry, a permission whose policy is competition timed to the term’s end.

Copyright’s overrides are its exceptions: the permitted acts that allow research, criticism, teaching, reporting, accessibility for persons with disabilities and a set of institutional uses without the owner’s consent, together with the statutory and compulsory licensing provisions for works withheld from the public and for broadcasting in defined circumstances. The designs and trade marks statutes carry narrower reservations: the Crown use idea appears in the designs field in a limited form, and trade marks are subject to the honest practices defences and the descriptive use that the infringement provisions exclude. The geographical indications statute protects the public against deceptive indications rather than reserving use against the producers.

The lesson for the map is that the debate in this field is almost always a debate about where an override’s boundary sits: how wide the fair dealing is, how available the compulsory licence is, how quickly the generic preparation may begin. Originator and generic, owner and user, are the standing parties to that boundary dispute, and the judgments the cluster articles record are the boundary being surveyed, section by section, in particular cases.

The vocabulary of the field

The statutes use a set of terms of art whose ordinary meanings mislead, and a reader equipped with them reads the rest of the series more accurately. A proprietor is the owner of the right; a registered proprietor is the person entered on the register, who in the trade marks system is the person the statute clothes with the rights of ownership. A registered user is a different figure: a person permitted by the proprietor to use the mark, recorded on the register, whose use counts as the proprietor’s use for keeping the registration alive. An applicant is anyone who has filed, and holds no right by that fact alone in the registrable fields. A person interested and a person aggrieved are the standing formulas that control who may oppose, revoke or rectify: the patents statute speaks of persons interested, the trade marks statute of persons aggrieved, and the width of those formulas decides how open the register-policing proceedings are to competitors and to the public.

Infringement and passing off are not synonyms. Infringement is the statutory wrong of doing the acts reserved to the owner of a registered right or of a copyright; passing off is the common law wrong of misrepresenting one’s goods or services as another’s, and it needs no registration but needs goodwill, misrepresentation and damage proved. A well-known mark is a mark that has become known to a substantial segment of the relevant public, and the statute protects it across dissimilar goods; the determination is made by the registrar or the court on the factors the Act lists. An authorised user, in the geographical indications system, is the producer entitled to use the registered indication, and the term has no application outside that statute. Prior art is the whole of the knowledge available before a patent’s priority date, in any form and in any place, and its worldwide and all-formats character is what makes the defensive traditional knowledge record described in this guide necessary. Armed with those distinctions, a reader can follow any article in the cluster without pausing at its terms.

Ownership, transfer and licensing in headline form

Rights that can be owned can usually be sold, licensed and inherited, and the intellectual property statutes each contain an assignment and licensing chapter. A guide states the pattern and the two exceptions, because the exceptions are the traps.

Patents, copyright, trade marks and designs are all assignable, in whole or in part, and each statute requires or rewards the recording of assignments with the office so that the register shows the true proprietor. Licensing is equally general: a patent can be licensed exclusively or non-exclusively, a copyright can be licensed for specified works, modes and periods, and a trade mark can be used by a registered user under the proprietor’s control. Copyright has distinctive first ownership rules for works made in employment and for commissioned photographs, paintings, films and sound recordings, and the copyright article in this series owns those rules; the headline is that the employer or commissioning party is frequently the first owner and the individual creator frequently is not, which surprises creators who assume the right follows the hand that made the work.

The first exception is the geographical indication. A registered geographical indication cannot be assigned, transmitted or licensed away from the region’s producers; it is a collective right and the statute forbids the transactions that would separate the name from the place. The second exception runs the other way and concerns moral rights in copyright: the author’s special rights to claim authorship and to restrain distortion of the work survive assignment of the copyright itself, so a buyer of the copyright does not buy the author’s reputation interest in the work.

Remedies and enforcement in headline form

An intellectual property right is enforced principally through a civil suit for infringement, in which the court can grant injunctions, damages or an account of profits, and delivery up of the infringing material. Suits are brought in the district court or, where the Commercial Courts Act applies and the High Court holds original jurisdiction, in the Commercial Division, and the plaintiff’s choice of forum follows the rules on where the plaintiff carries on business and where the infringement occurs, subject to the additional plaintiff-side forum that the copyright and trade marks statutes confer on an owner who resides or works for gain in the jurisdiction. Interim injunctions are the practical centre of intellectual property litigation, because the market harm from a copied product or a confusing mark is usually done before a trial can be held, and the courts have developed devices for urgent cases, including orders against unidentified infringers in the online piracy context and orders that adapt as new infringing locations appear. The copyright article in this series owns the detail of that jurisprudence.

Criminal provisions sit beside the civil ones in the trade marks and copyright statutes: falsifying or falsely applying a trade mark and infringing copyright in a work on a commercial scale are offences, investigated by the police with search and seizure powers that the statutes define. Border enforcement is the third channel: the intellectual property rights imported goods enforcement rules allow a right holder to record its right with the customs authorities and to have consignments of infringing goods suspended at the border. Each channel answers a different kind of infringement: the civil suit answers the identified competitor, the criminal machinery answers organised counterfeiting, and the customs recordal answers the container.

Errors that circulate in this field

Guides to this field repeat a small set of errors, and naming them is a service, because a reader who has absorbed one of them will misread everything else.

The first error is describing the Intellectual Property Appellate Board as a functioning forum. It was abolished on 4 April 2021. Any text that routes a patent, trade mark or geographical indications appeal to it is describing a system that no longer exists, and the error is consequential because it sends the reader to a registry that cannot receive the filing.

The second error is treating copyright registration as compulsory. It is not, and the error harms creators who believe an unregistered work is unprotected and infringers who believe an unregistered work is free to copy. The third error is omitting geographical indications and semiconductor layout-designs from the list of rights, which produces accounts of Indian intellectual property law with four rights instead of six and leaves the reader unable to place a regional product name or a chip layout when one appears.

The fourth error is describing the Patent Cooperation Treaty or the Madrid system as granting an international patent or an international trade mark. Neither grants anything; both are filing corridors into national offices that grant or refuse under national law. The fifth error is treating a pending patent application as a patent. Until grant there is no monopoly to enforce, and the marking of a product as patented when only an application is pending is not a harmless exaggeration. The sixth error is assuming that intellectual property is a state subject because so much of Indian commercial regulation is state-level. It is a Union subject under entry 49, and there is no state register to consult and no state office to file in.

More than one product, more than one lesson

The drink example in the preceding section is the simplest case of layered rights. Two further examples show the layering at work in industries where the money is larger.

A feature film carries copyright in its screenplay as a literary work, copyright in its music as a musical work, copyright in the recordings as sound recordings, and copyright in the film itself as a cinematograph film, each with its own owner and its own assignment history. Its title and its franchise characters are protected as trade marks when they are used on merchandise, and its posters are artistic works. A dispute about a remake right is therefore a question about which layer was assigned to whom, and the answer is in the chain of assignments rather than in any single certificate.

A medicine carries a patent on its active compound or its formulation while the patent runs, a trade mark on its brand name that can outlast the patent indefinitely, copyright in its packaging artwork and patient information leaflet, and, when the patent expires and generic versions enter, a continuing contest conducted entirely in the trade mark and passing off layer because the patent layer has closed. The pharmaceutical debate that the patents cluster of this series owns, between originator companies and generic manufacturers, is fought across exactly these layers, and a reader who understands the layering understands why the expiry of a patent does not end the commercial protection of a medicine and why the trade mark questions survive it.

Pairs of rights are confused with each other so regularly that a guide should separate the four commonest pairs expressly.

A logo is confused between copyright and trade mark. As an artistic work it attracts copyright, which protects it against copying. As a sign used in trade it is a trade mark, which protects it against confusing use on goods and services whether or not copying in the copyright sense is proved. The owner who registers only the trade mark has the right that does the commercial work; the owner who relies only on copyright has the right that expires and that does not reach independent creation.

A product’s shape is confused between design and trade mark. The shape can be a registered design for its first years if it is new and eye-appealing, and shapes can in principle be registered as trade marks, but a shape that is functional or that gives substantial value to the goods faces the absolute grounds of refusal, and the design registration is the route the statutes designed for appearance. The two rights also age differently: the design expires by design, while the mark is maintained by renewal and use.

A geographical indication is confused with a certification trade mark. Both can signal that goods from a region meet a standard, and some regional products carry one or the other or both. The difference is ownership and transfer: the indication belongs to the region’s producers collectively and cannot be assigned, while a certification mark is owned by the certifying body and is governed by the trade marks statute. Producers choosing between the regimes are choosing a governance structure as much as a right, and the geographical indications article in this series owns that choice.

A trade secret is confused with a patent. The two are opposite strategies for the same invention. The patent publishes the invention and grants a twenty-year monopoly enforceable against the whole world, including independent inventors. The secret keeps the invention unpublished and protects it only against those who obtain it wrongfully or in breach of confidence, and it is lost the moment a competitor lawfully reverse-engineers the product or independently arrives at the same solution. Industries divide on the choice by the nature of the product: a medicine that must be disclosed to regulators and can be analysed in a laboratory tends to the patent; a process practised behind a factory wall tends to the secret.

Routing four problems through the map

The guide’s test can be worked on four problems that a business or creator typically brings, and working them shows how the map is used without giving advice on any individual matter, which no article can do.

A technology start-up has built a software product with a distinctive name and interface. Its assets are the code, the name and the look of the application. The code is protected by copyright as a literary work from the moment it is written, and the company’s first task is documentary: ensuring that the employment and contractor agreements assign the copyright to the company, because code written by a contractor who never assigned it may belong to the contractor. The name is a trade mark question, answered by a register search followed by an application, and the look of the interface is at most a design or copyright question of limited strength. No patent arises unless the product embodies a technical invention of the kind the patents article describes, and a foreign expansion would be routed through the Madrid Protocol for the name.

A regional food producer wants to stop sellers elsewhere from using the town’s name for a sweet that the town is known for. The map routes the problem to the geographical indications statute, with the producers’ association as the applicant and the region’s producers as authorised users, and it warns that the right, once registered, belongs to the producers collectively and cannot be sold to a single company. Pending registration, passing off on the unregistered indication is the available protection, and the evidence that matters is the reputation attaching to the name and the link between the product’s qualities and the place.

An author discovers that a coaching institute has reproduced her book in a course pack. The map routes the problem to copyright, notes that her right subsists without registration, and points to the remedies: a civil suit for injunction and damages, the statutory provisions on delivery up, and, where the copying is on a commercial scale, the offence provisions. It also notes the exceptions she will meet as defences, in the permitted acts for teaching and research, and that the suit lies in the court structure described in this guide rather than before any board, there being no copyright board to approach.

A manufacturer finds that a competitor is selling a machine that copies both its patented mechanism and the shape of its housing. The map separates the two complaints: the mechanism is a patent infringement question for the court, with the competitor’s likely counterclaim for revocation travelling with the suit, and the housing shape is a design question if the design was registered and remains in force, or nothing at all if it was not, because unregistered appearance attracts no statutory right. The example shows why the registration question must be asked at the time of creation: the design right that would have answered the second complaint cannot be obtained after the product has been published and sold.

The table that follows is the artifact this guide exists to provide. It is the one place in the series where the six rights are set side by side on the points that a reader with a creation in hand actually needs: the subject matter, whether registration is needed for an infringement action, the term, the registering authority, the appellate forum since 2021, and what the right does and does not cover.

Right	Subject matter	Registration needed for an infringement action	Term	Registering authority	Appellate forum since 2021	Covers and does not cover
Patent	Inventions that are new, involve an inventive step and are capable of industrial application	Yes, the right exists only on grant	Twenty years from the date of filing	The Controller of Patents, through the patent offices at Chennai, Delhi, Kolkata and Mumbai	The High Court	Covers a new product or process and how it works; does not cover discoveries, scientific principles, business methods as such, or inventions relating to atomic energy
Copyright	Original literary, dramatic, musical and artistic works, cinematograph films and sound recordings	No, the right arises on creation and registration is not a precondition to suing	The life of the author plus sixty years for most works; sixty years from publication for government, anonymous and posthumous works	The Registrar of Copyrights, through the Copyright Office	The Commercial Court or the Commercial Division of the High Court	Covers expression, such as the text, score, film or recording itself; does not cover the idea, method or information the work expresses
Trade mark	A mark used in the course of trade to distinguish one person’s goods or services from another’s	Yes for the statutory infringement action; an unregistered mark can be protected by an action for passing off	Ten years from the application date, renewable indefinitely in further periods of ten years	The Registrar of Trade Marks, through the trade marks registry	The High Court	Covers signs that identify trade origin, including names, logos, shapes and packaging; does not cover descriptive terms as such or marks likely to deceive
Design	Features of shape, configuration, pattern, ornament or composition of lines or colours applied to an article and judged by the eye	Yes, the right exists only on registration	Ten years from registration, extendable by a further five years	The Controller of Designs, through the designs office at Kolkata	The High Court	Covers how an article looks; does not cover how it works, features dictated solely by function, or a trade mark as such
Geographical indication	Indications identifying goods as originating in a territory where a quality, reputation or characteristic is essentially attributable to the geographical origin	Yes for the statutory infringement action; an unregistered indication can be protected by passing off	Ten years from registration, renewable for further periods of ten years	The Registrar of Geographical Indications, through the registry at Chennai	The High Court	Covers a regional name used by the region’s producers collectively; does not give any single producer an exclusive right to the name
Semiconductor layout-design	Layout-designs of semiconductor integrated circuits	Yes, the right exists only on registration	Ten years from filing or from first commercial exploitation, whichever is earlier	The Registrar of Semiconductor Integrated Circuits Layout-Designs	The High Court	Covers the original layout of an integrated circuit; does not cover the electronic function the layout performs

Which intellectual property right protects how an invention works?

A patent does. The Patents Act, 1970 grants an exclusive right over an invention that is new, involves an inventive step and is capable of industrial application, for twenty years from filing. Registration means grant in this field: filing an application gives no enforceable monopoly, and the right comes into existence only when the Controller grants the patent.

Does copyright have to be registered before a creator can sue?

No. Copyright under the Copyright Act, 1957 arises on the creation of an original work, and registration is not a precondition to bringing an infringement action. Registration gives the owner a record and a certificate that is evidence, but the right subsists in an unregistered work and can be enforced, which is where copyright differs from patents, designs and layout-designs.

Where does a patent or trade mark appeal go after the 2021 change?

To the High Court. The Tribunals Reforms Act, 2021 abolished the Intellectual Property Appellate Board and substituted the High Court in the patents, trade marks, designs and geographical indications statutes, so appeals from the Controller and the Registrars, with revocation and rectification applications, lie to the High Court. Copyright appeals go to the Commercial Court or the Commercial Division.

Which intellectual property right can last indefinitely?

A registered trade mark can. Registration under the Trade Marks Act, 1999 lasts for ten years and is renewable for successive periods of ten years with no limit on renewals, so a mark that remains in use can be kept registered while its proprietor maintains it. Every other right in the field has a fixed term that expires.

Do the states have any role in intellectual property law?

No. Entry 49 of the Union List reserves patents, inventions and designs, copyright, trade marks and merchandise marks to Parliament, so there is no state legislation in this field and no state intellectual property office. The offices are central, the statutes are central, and disputes are heard by the High Courts and the Supreme Court under central law.

When rights end: expiry, the public domain and genericide

The map should also show where the rights stop, because the end of a right is part of its definition and because the three principal rights end in three different ways.

A patent ends by expiry of its twenty years, by non-payment of renewal fees, by surrender or by revocation, and on expiry the invention falls to the public: anyone may make, use and sell it, and the specification the patentee published becomes the public’s instruction manual. That is the bargain the system strikes, and the generic industries that enter on expiry are exercising the public’s side of it.

Copyright ends by the running of its term, the life of the author and sixty years for most works, and the work then enters the public domain in the practical sense that anyone may reproduce it, though the term belongs to the statute rather than to a register and no authority issues a certificate of expiry. Ownership complications survive expiry questions frequently, because the right passes through estates and assignments across the long term, and the copyright article in this series deals with the ownership chain. A design ends at fifteen years at most, a layout-design at ten, and a geographical indication can be renewed indefinitely but can lose protection if the link between the product and the place ceases to hold.

A trade mark ends differently. It does not expire while it is renewed and used, but it can die by use: a mark that becomes the common name of the product, the fate the courts call genericide, loses its distinctiveness and with it its protection, and a registration can be removed for non-use over the statutory period on the application of a person aggrieved. The standing contest for a famous brand is therefore defensive in a way the other rights are not: the patentee counts down a fixed term, while the mark’s proprietor must police the market and the dictionary indefinitely to keep the name a mark at all. That asymmetry is the last structural fact the guide records, because it explains why the trade mark, the weakest right at its birth, requiring only a name and a filing, is frequently the most valuable right a business owns at its maturity.

The profession that works the field

A map of institutions should include the people licensed to work in them. Patent practice in India is a statutory profession: the Patents Act maintains a register of patent agents, and a person who is not an advocate needs the agent’s qualification, which combines a science or engineering degree with an examination conducted by the patent office and a period of practice, to draft specifications and prosecute applications for others by right before the Controller. Advocates may also appear, and in practice the drafting of specifications is the agents’ craft while the litigation is the advocates’. The trade marks system likewise recognises agents for practice before the Registrar, and the registry maintains its register. Copyright and designs practice has no separate licensed profession of the same kind, and is conducted by advocates and by the agents who handle the filings.

The professional structure explains a practical feature of the field that puzzles newcomers: the division between the attorney who files and the counsel who argues is sharpest in intellectual property, because the skills of drafting a specification that will survive examination and revocation are technical as much as legal. It also explains the geography of practice, which clusters in the cities that hold the offices and the principal courts, Delhi above all, with Mumbai, Chennai, Kolkata and Bengaluru carrying substantial practices of their own.

Where the law of the field is found

A reader who wants to verify anything in this guide should know where the authoritative texts sit. The six statutes, as amended, are published by the government in the Gazette and in the official code of central legislation, and the amendments made by the Tribunals Reforms Act, 2021 are found in that Act’s schedules, which is where the substitution of the High Court for the board was enacted. The rules under each statute, with their fee schedules, are published in the same way, and the offices publish their journals and registers through the intellectual property office’s portal. The Delhi High Court’s Intellectual Property Rights Division Rules, 2022 and the Rules Governing Patent Suits, 2022 are published by the court, and the transferred matters are traceable through the court’s cause lists.

That arrangement of sources is the final point of the map. The law of this field is unusually findable, because the registers are public, the journals are public and the principal rules are short. What is not findable, and what misleads the searcher, is currency: the sources describing the appellate structure before April 2021 remain in circulation in far greater numbers than the sources describing the structure that replaced it, which is why this guide has repeated the forum position at every point where a reader arriving from an older text would go wrong.

The map restated

The guide can be reduced, without loss of the essentials, to a short set of propositions. Intellectual property in India is a Union subject under entry 49 of the Union List, legislated by Parliament alone and administered by central offices. Six statutes make up the field: the Patents Act, 1970 for inventions, the Copyright Act, 1957 for works, films and recordings, the Trade Marks Act, 1999 for marks, the Designs Act, 2000 for appearance, the Geographical Indications of Goods (Registration and Protection) Act, 1999 for regional names, and the Semiconductor Integrated Circuits Layout-Design Act, 2000 for chip layouts, with plant varieties and biological diversity access housed in other clusters of this series.

Registration creates the right for patents, designs, geographical indications and layout-designs; it arms the owner with the statutory action for trade marks while passing off protects the unregistered mark; and it is unnecessary for copyright, which arises on creation. The terms are twenty years for a patent, the author’s life and sixty years for most copyright works, ten renewable years for trade marks and geographical indications, ten years and a five-year extension for designs, and ten years for layout-designs. The administration sits under the Controller General of Patents, Designs and Trade Marks for the registrable rights, and the Copyright Office in the same department for copyright. The international frame is TRIPS as the standard-setter, the Paris Convention and the Patent Cooperation Treaty for patents, the Madrid Protocol for marks, Berne and the two internet treaties for copyright, the Budapest Treaty for micro-organism deposits, and a deliberate absence from the plant varieties union and the designs filing system.

The forum position, which is the part of the map that changed, is that the Intellectual Property Appellate Board and the Copyright Board were abolished on 4 April 2021 by an ordinance later enacted as the Tribunals Reforms Act, 2021; that appeals and register proceedings from the Controller of Patents and the Registrars of Trade Marks, Designs and Geographical Indications lie to the High Courts; that copyright appeals lie to the Commercial Court or the Commercial Division of the High Court; that nearly three thousand transferred matters went to the Delhi High Court alone; and that the Delhi High Court answered by creating an Intellectual Property Division in July 2021 and notifying the division’s rules and the patent suits rules in February 2022. The reader who holds those propositions holds the field, and the articles that follow in this cluster take each statute in turn.

Two softer propositions complete the map. The first is that the same creation routinely carries several of these rights at once, in layers with different owners, terms and offices, and that the practised skill in the field is the separation of the layers. The second is that every right in the field is bounded by a public interest override, a fair dealing exception, a compulsory licence, an honest practices defence or an expiry, and that the argument in Indian intellectual property law is almost never about whether rights should exist. It is about where each boundary sits, and the articles in this cluster record that boundary being drawn, provision by provision and case by case, across the patents, copyright and trade marks pillars that follow.

There is a reason the forum story was given the centre of this guide rather than a footnote, and it is worth stating before the cluster proceeds. Every article that follows sends its appeals, revocations and rectifications somewhere, and the somewhere changed in 2021 for all of them at once. A reader who takes the forum position from this guide can read the pillar articles without carrying an outdated appellate map into any of them, and a reader who meets a source that still routes those proceedings to the abolished board will know that the source predates the change or has not absorbed it. The specialisation that the board was created in 2003 to supply did not disappear with the board; it moved into the courts, fastest where the workload was heaviest, and the history of that move is the history of Indian intellectual property institutions in miniature: a design enacted, a capacity neglected, a structure abolished, and the expertise rebuilt by the institution that inherited the files.

Frequently Asked Questions

Q: Which statutes make up Indian intellectual property law?

Six statutes make up the field. The Patents Act, 1970 covers inventions; the Copyright Act, 1957 covers original works, films and sound recordings; the Trade Marks Act, 1999 covers marks used in trade; the Designs Act, 2000 covers the appearance of articles; the Geographical Indications of Goods (Registration and Protection) Act, 1999 covers regional product names; and the Semiconductor Integrated Circuits Layout-Design Act, 2000 covers chip layouts. Two further statutes sit at the edges of the field and are owned by other clusters in this series: the Protection of Plant Varieties and Farmers’ Rights Act, 2001, which the agriculture cluster owns, and the access and benefit sharing provisions of the biological diversity statute, which the environment cluster owns. Together with the common law of passing off and confidence, the six statutes are the whole of the subject.

Q: Is intellectual property a Union or State subject?

It is a Union subject. Entry 49 of the Union List in the Seventh Schedule reserves patents, inventions and designs, copyright, trade marks and merchandise marks to Parliament, which means that no state legislature can enact a law on these subjects and there is no state intellectual property legislation anywhere in India. The administering offices are central bodies: the patent offices, the trade marks registry, the designs office and the geographical indications registry function under the Controller General of Patents, Designs and Trade Marks, and the Copyright Office sits in the department for promotion of industry and internal trade. The practical consequence is uniformity. A business registering a mark or filing a patent deals with one statute and one office structure wherever in India it is based, and appeals travel to the High Courts under central law.

Q: Which intellectual property rights need registration?

Registration creates the right for patents, designs, geographical indications and semiconductor layout-designs: an invention, a design, a regional indication or a chip layout has no registered right until the office grants or registers it. For trade marks, registration gives the statutory infringement action and the presumptions that go with it, but an unregistered mark can be protected through a passing off action, so registration is strongly advisable rather than strictly constitutive. Copyright is the exception that causes the confusion: it arises on the creation of the work and registration is not required for the right to exist or to be enforced. The pattern is therefore not uniform, and a creator should ask the registration question separately for each right rather than assume one answer covers the field.

Q: Where do intellectual property appeals go now?

Since 4 April 2021 they go to the courts. The Tribunals Reforms (Rationalisation and Conditions of Service) Ordinance, 2021, later enacted as the Tribunals Reforms Act, 2021, abolished the Intellectual Property Appellate Board and the Copyright Board and amended the statutes to substitute new forums. Appeals from the Controller of Patents, and revocation and rectification applications under the patents statute, lie to the High Court. Appeals from the Registrars of Trade Marks, Designs and Geographical Indications, and rectification applications under those statutes, also lie to the High Court. Copyright went a different way: appeals from the Registrar of Copyrights lie to the Commercial Court or the Commercial Division of the High Court. In Delhi, the High Court’s Intellectual Property Division hears the matters that come to that court. Published guidance that still names the abolished board is out of date.

Q: Which international intellectual property treaties has India joined?

India is bound by the Agreement on Trade Related Aspects of Intellectual Property Rights as a founding member of the World Trade Organization, and that treaty sets the minimum standards the six statutes follow. India joined the Paris Convention for the Protection of Industrial Property and acceded to the Patent Cooperation Treaty in 1998, which together give priority rights and the international patent filing route. It joined the Madrid Protocol for the international registration of marks in 2013, the Budapest Treaty on the deposit of micro-organisms in 2001, and the Berne Convention for copyright in 1928. In 2018 India acceded to the two internet treaties, the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty. India has not joined the international union for the protection of new plant varieties or the Hague system for designs.

Q: Who administers intellectual property in India?

Two offices administer the field under the department for promotion of industry and internal trade. The Controller General of Patents, Designs and Trade Marks heads the office under which the patent offices at Chennai, Delhi, Kolkata and Mumbai, the trade marks registry at five locations, the designs office at Kolkata and the geographical indications registry at Chennai function. The Copyright Office, headed by the Registrar of Copyrights, registers copyright, and it was moved to the same department in 2016 so that the industrial property administration and the copyright administration sit together. Each office works under rules made under its parent statute, which prescribe the procedure and the fee schedules. Appeals from these offices, after the 2021 abolition of the specialist appellate board, lie to the High Courts, with copyright appeals going to the Commercial Court or the Commercial Division.

Q: Can the same product be protected by more than one intellectual property right?

Yes, and in practice most commercial products carry several rights at once. A branded drink can have a trade mark in its name and label, copyright in the label artwork, a registered design in the shape of its bottle and, if the contents involve a new technical solution, a patent. A book carries copyright in its text, copyright in its cover design as an artistic work and a trade mark in its publisher’s imprint. The rights are not alternatives between which the owner must choose; they protect different aspects of the same thing, they arise in different ways, they have different terms and they are granted by different offices. The mistake the question corrects is the assumption that a creation must be assigned to a single category. The skill in the field is identifying each aspect and matching it to the right that protects it.

Q: What does intellectual property protection cost and how long does it take?

The cost has three parts. The official fee is prescribed by the fee schedule to the rules under each statute and differs by the category of applicant, with individuals, small entities and educational institutions paying reduced fees under the patents and designs rules. The second part is the agent’s or attorney’s charge for preparing and prosecuting the application, which is a market price and varies by firm and by the complexity of the case. The third part, where it arises, is the cost of contested proceedings such as oppositions, rectifications and infringement suits, which is the largest of the three. Time follows the same pattern: an unopposed trade mark application moves much faster than an opposed one, and a patent application can be opposed before grant and again after it. Anyone quoting a single figure or a single timeline should be asked which of the three parts, and which level of contest, the figure assumes.

Q: What was the Intellectual Property Appellate Board, and what did it do?

The Intellectual Property Appellate Board was a specialist appellate body constituted in 2003 under the Trade Marks Act, 1999. It heard appeals against the decisions of the Registrar of Trade Marks, and its jurisdiction was extended to appeals from the Controller of Patents and the Registrar of Geographical Indications, and to revocation and rectification applications under those statutes. Its benches included technical members for patent matters, and it sat principally at Chennai with circuit sittings elsewhere. Alongside it, the Copyright Board under the Copyright Act, 1957 heard appeals from the Registrar of Copyrights. The board’s design was deliberate: intellectual property appeals involve technical and specialised questions, and the board was created to supply a forum with both legal and technical members sitting together. It was abolished on 4 April 2021, and its work moved to the High Courts.

Q: Why was the Intellectual Property Appellate Board abolished?

The government’s stated reasons, set out in the statement accompanying the Tribunals Reforms Ordinance of 2021, were that the tribunals abolished by that measure had not delivered justice more quickly than the courts and had not reduced the burden on the exchequer, and that the disposal figures for the preceding years did not show the tribunals adding value. The case made against abolition was different in kind: the board had suffered prolonged vacancies, including of its chairperson, and had lacked technical members for long periods, so its delays were a consequence of understaffing rather than of the tribunal model itself, and abolishing an under-resourced body addresses the symptom rather than the cause. Critics also pointed out that a generalist court hearing a patent revocation needs technical understanding the board was designed to supply. The two cases are set out in the body of this guide, and the outcome in the Delhi High Court, which built a specialist division to receive the work, has been better than the critics predicted.

Q: What is the Delhi High Court Intellectual Property Division?

It is a division of the Delhi High Court created to hear intellectual property matters after the abolition of the Intellectual Property Appellate Board transferred nearly three thousand pending matters to that court alone. The Chief Justice constituted a committee of two judges of the court, Justice Pratibha M. Singh and Justice Sanjeev Narula, to recommend how the work should be organised, and on the committee’s recommendation an office order of 7 July 2021 created the division. It hears infringement suits, appeals from the intellectual property offices, revocation and rectification petitions and related writ petitions. On 24 February 2022 the court notified the Delhi High Court Intellectual Property Rights Division Rules, 2022 and separate rules governing patent suits, which lay down the procedure for the division, including claim construction and invalidity briefs and the filing of a technical primer to equip the court with the underlying science.

Q: Is copyright registration compulsory in India?

No. Copyright subsists in an original work from the moment of its creation, and the Copyright Act, 1957 does not make registration a condition of the right or of the right to sue for infringement. Registration at the Copyright Office gives the owner an entry in the register of copyrights, which the statute treats as prima facie evidence of the particulars entered in it, and that evidentiary value is the reason owners register. The common belief that an unregistered work is unprotected is wrong, and it causes real harm in both directions: creators who fail to act against infringement because they never registered, and defendants who assume that copying an unregistered work is safe. The position differs for patents, designs, geographical indications and layout-designs, where registration or grant is the act that creates the right, and the contrast is one of the points on which this field is most often misdescribed.

Q: What happened to the cases that were pending before the abolished board?

They were transferred. When the Tribunals Reforms Ordinance of 2021 abolished the Intellectual Property Appellate Board, the matters pending before it moved to the High Courts having jurisdiction over the offices whose decisions were under appeal, and nearly three thousand of them went to the Delhi High Court alone. The receiving courts have treated the transferred matters as continuing from the stage they had reached before the board, with the parties able to supplement their material where the court permits, rather than as fresh proceedings to be started again. The Delhi High Court’s Intellectual Property Division was created in part to receive and organise that transferred work, and its rules of 2022 provide for the listing of the transferred matters. A party whose appeal or rectification petition was pending before the board should look for its transferred number on the cause list of the receiving court rather than assume the proceeding has lapsed.

Q: Does India allow a single international filing for trade marks?

Yes, through the Madrid Protocol, which India joined with effect from 8 July 2013. A trade mark owner with a registration or a pending application in India can file one international application through the Indian trade marks registry, designating the member countries in which protection is sought. The international bureau of the World Intellectual Property Organization records the registration and forwards it to each designated office, which then examines the mark under its own law and can refuse protection within the period the protocol allows. The result is not a single worldwide trade mark; it is a bundle of national rights managed through one filing and one renewal, which is what makes the system economical. Foreign owners use the same route in reverse, designating India in an international registration to obtain protection here without a separate Indian filing at the outset.

Q: What does the Paris Convention priority right give an Indian applicant?

It gives time. An applicant who files a patent application in India can claim the benefit of an earlier application filed in another Paris Convention country if the Indian filing is made within twelve months of the earlier one, and a trade mark applicant has six months. The Indian application is then treated, for the purpose of assessing novelty and competing filings, as if it had been filed on the date of the earlier application. India joined the Paris Convention in 1998, and the priority mechanism is the practical reason that membership matters: without it, an inventor who disclosed or filed abroad first could find the foreign filing used against the Indian application. Priority does not guarantee a grant. Each office still examines the application under its own law, and the Indian office applies the Patents Act, 1970, including its exclusions and its Section 3, to every application however it arrives.

Q: What is TRIPS, and what did it require India to change?

TRIPS is the Agreement on Trade Related Aspects of Intellectual Property Rights, an annex to the agreement establishing the World Trade Organization, of which India is a founding member. It sets minimum standards for each branch of intellectual property: twenty-year patent terms, copyright terms measured from the author’s death, protection for trade marks, designs, geographical indications and layout-designs, and enforcement procedures in the courts of member states. India, as a developing country, was given transition periods, and the last of them, for product patents in pharmaceuticals and agrochemicals, expired at the start of 2005. The Patents (Amendment) Act, 2005, which has its own article in this series, completed the transition by introducing product patents in those fields and the Section 3(d) provision on new forms of known substances. TRIPS also contains flexibilities, including compulsory licensing, and India’s statute uses several of them; the balance between the standards and the flexibilities is the contested ground the patents cluster of this series is about.

Q: Are trade secrets protected by any Indian statute?

No statute creates a trade secret right in India. Confidential information is protected through the law of confidence as developed by the courts, through contract, and through the obligations that arise between an employer and an employee or between parties to a negotiation. There is no office to register with, no certificate to obtain and no term to run; the protection lasts only as long as the information remains confidential and the obligations that bind the people who know it hold. That has two practical consequences. The first is that the discipline of secrecy is itself the protection, and a business that circulates its process widely has given away the thing it hoped to keep. The second is that a secret once lost cannot be recovered by an infringement action of the kind the six statutes provide, which is why the choice between patenting an invention, with disclosure in exchange for a twenty-year monopoly, and keeping it secret, with no monopoly but no disclosure, is one of the real decisions the comparison article in this series works through.

Q: What is the Traditional Knowledge Digital Library, and why was it created?

It is a defensive database, created in 2001 as a collaboration between the Council of Scientific and Industrial Research and the department responsible for the Indian systems of medicine. It records formulations from the Ayurvedic, Unani and Siddha classical texts in a classified, multilingual form, and it is made available to foreign patent offices under access agreements so that their examiners can find the material when a patent application claims a use that the texts already document. It was created after episodes in which patents were granted abroad on the wound-healing use of turmeric and on a neem-based fungicide, and were revoked only after India produced the classical documentation in re-examination and opposition proceedings. The library creates no right and registers nothing; it prevents rights from being granted over knowledge that was never new, by putting the prior art in the form examiners search.

Q: Does a geographical indication belong to one company?

No. A geographical indication belongs to the producers of the region it names, collectively. Under the Geographical Indications of Goods (Registration and Protection) Act, 1999, the indication is registered in the name of an association of persons or an organisation representing the producers, and individual producers are registered as authorised users who may use the indication for goods that meet the registered particulars. No single producer owns the name, and the statute prohibits the assignment, transmission or licensing of a registered geographical indication in the way a trade mark can be assigned. That prohibition is the point of the right: the reputation attaches to the place and to the producers who work there, and it cannot be sold away from them. Registration lasts for ten years and is renewable, and an unregistered indication can be protected by a passing off action, though registration gives the statutory infringement action. Darjeeling tea is the best known Indian example, and the geographical indications pillar of this series owns the registration of authorised users and the inspection structures in detail.

Q: How does India protect plant varieties, if it is not in the international plant varieties union?

India chose a sui generis statute rather than membership. When TRIPS required members to protect plant varieties by patents, by an effective sui generis system or by a combination, India enacted the Protection of Plant Varieties and Farmers’ Rights Act, 2001, which protects new, extant, farmers’ and essentially derived varieties and, unusually among plant variety statutes, names farmers’ rights in its title and provides for the registration of farmers’ varieties. India is not a party to the international convention for the protection of new varieties of plants administered by the UPOV union. The statute is owned by the agriculture cluster of this series, and this guide names it only so that the map of the field is complete: a reader who wants the registration criteria, the duration of protection, which is measured differently for trees and vines than for other crops, and the benefit sharing provisions should go to the article that owns it rather than rely on a summary here.