INDIA Law and Practice Contributed by: Safir Anand and Twinky Rampal, Anand and Anand Advocates
8. Litigating Trade Mark and Copyright Claims 8.1 Special Procedural Provisions for Trade Mark or Copyright Proceedings In a landmark decision, with effect from April 2021, the country abolished the Intellectual Property Appellate Board (IPAB) and transferred jurisdiction of adjudicating appeals to the High Courts. Subsequently, Delhi High Court formed a dedicated Intellectual Property Division to for - malise and hear IP matters that had been pend - ing before the IPAB. Delhi High Court created the Intellectual Property Division to deal with matters relating to IP rights, with which the aggrieved A trade mark registration establishes a legal presumption of the registrant’s ownership of the mark and the registrant’s exclusive right to use the mark nationwide on or in connection with the goods and/or services listed in the registration. 8.3 Costs of Litigating Infringement Actions Investigation fees, attorneys’ fees and expens - es, notarisation fees, translation fees and court fees are all examples of usual costs. After a first-instance decision, litigation costs, includ - ing attorneys’ fees, are recoverable. However, there is no guarantee that a party against whom an injunction is obtained will have to bear the expenses of litigation. The court has complete discretion over whether or not to award expens - es. parties can file their claims. 8.2 Effect of Registration
9. Defences and Exceptions to Infringement 9.1 Defences to Trade Mark Infringement Defences available against infringement claims include the following: • delay and laches; • acquiescence; • honest and good-faith adoption and use; • differences in goods and services; • the nature of the product; • pricing; and • the absence of confusion or deception. Acquiescence may be considered a form of delay, although it has a more active element of knowledge of third-party rights coupled with delay. 9.2 Defences to Copyright Infringement (Fair Use/Fair Dealing) Section 52 of the Copyright Act details the provi - sions that allow for fair use. “52. Certain acts not to be infringement of copy - right 1. The following acts shall not constitute an infringement of copyright, namely – (a) a fair dealing with any work, not being a computer program, for the purpose of – (i) private or personal use, including re - search; (ii) criticism or review, whether of that work or of any other work; (iii) the reporting of current events and cur - rent affairs, including the reporting of a lecture delivered in public; Explanation – The storing of any work in any electronic medium for the purposes mentioned
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