Intellectual Property Questions and Answers in India

Intellectual property in India is protected under the Trade Marks Act, 1999, the Copyright Act, 1957, the Patents Act, 1970 and the Designs Act, 2000.

Common questions cover trademark availability searches and class selection, opposition and objection at examination, copyright in software, content and design, whether an idea can be protected at all, patentability of software and business methods, and enforcement against infringers and counterfeiters.

A trademark application is filed in one or more of the forty-five classes, and protection extends only to the classes filed. Examination usually produces a report raising objections on descriptiveness or similarity to an existing mark, which must be answered within the prescribed period; the mark is then advertised in the journal and opposed or registered. Registration is valid for ten years and renewable indefinitely.

Copyright arises automatically on creation and does not require registration, though a registration certificate is useful evidence in an infringement action. Software is protected as a literary work. Ideas, methods and facts are not protected at all — only the particular expression is, which is why a confidentiality agreement rather than copyright is the right tool at the pitching stage.

Patent protection in India excludes computer programmes as such and business methods under Section 3(k) of the Patents Act, so software claims must be framed around a technical effect. A patent application also carries an absolute novelty requirement: public disclosure before filing, including at a demo day or in a published paper, can defeat the application.

One point catches businesses repeatedly: under the Copyright Act, 1957, work created by an independent contractor does not vest in the commissioning company by default. Without a written assignment, the freelancer who built your product may own the copyright in it — a problem that usually surfaces during investor due diligence.