Intellectual Property Rights: Patents, Trademarks, Copyright, GI and TRIPS

This chapter has produced 3 real Prelims questions (2017, 2018 and 2019), and every one of them turns on a precise fact: what a specific Act actually protects, which body administers it, or what a named policy actually commits to. That makes this a chapter where vague familiarity ("India has IP laws") is worth almost nothing and exact recall is worth everything.

The single most important thing to get right before reading further: TRIPS is not TRIMS. The Trade-Related Aspects of Intellectual Property Rights Agreement (TRIPS), covered in this note, is the WTO's regime for patents, trademarks, copyright, geographical indications and designs. The Trade-Related Investment Measures Agreement (TRIMS) is an entirely different WTO agreement, governing investment measures like domestic-content requirements in goods trade, and it is the one behind India's solar-cells dispute (DS456) covered in this site's note on international economic organisations and the WTO. The two names look almost identical and examiners have exploited exactly that resemblance. If a question mentions patents, copyright or a GI tag, it is testing TRIPS. If it mentions a domestic-content requirement in an investment or procurement scheme, it is testing TRIMS. Keep the two agreements in separate mental boxes.

India recognises five main forms of intellectual property protection, each governed by its own Act, each with its own precise scope and its own statutory term. This note works through all five, then through TRIPS itself, the compulsory-licensing flexibility India has actually used, and the institutional machinery that administers all of it.

Patents: protecting the new invention, for 20 years from filing

A patent, governed by the Patents Act, 1970 (heavily amended in 1999, 2002 and 2005 to bring India into TRIPS compliance, including the restoration of product patents for pharmaceuticals, food and chemicals from 2005), protects a genuinely new invention: something novel, involving an inventive step, and capable of industrial application. It is a right over a solution to a technical problem, not over an idea in the abstract.

The term is precise and worth fixing exactly: Section 53 of the Act states that every patent's term "shall be twenty years from the date of filing of the application for the patent." Unlike a trademark, a patent cannot be renewed indefinitely. Once 20 years from filing have passed, the invention enters the public domain regardless of how valuable it still is, which is exactly why firms holding valuable patents have a structural incentive to look for ways to extend protection past that date, a practice called evergreening.

India built a specific statutory defence against evergreening directly into the Act: Section 3(d). It excludes from patentability "the mere discovery of a new form of a known substance which does not result in the enhancement of the known efficacy of that substance," along with the mere discovery of a new property or new use of a known substance, unless that new form demonstrably improves the substance's efficacy. In plain terms: if a company already holds a patent on a molecule, it cannot get a fresh 20-year patent merely by patenting a new crystalline form, salt, or polymorph of the same molecule unless that new form is genuinely more effective at treating the underlying condition, not just easier to manufacture or store.

Novartis AG vs Union of India (Supreme Court, judgment of 1 April 2013) is the case that gave Section 3(d) its real teeth. Novartis sought an Indian patent on the beta crystalline form of imatinib mesylate, marketed as Glivec, a leukaemia drug. The underlying molecule, imatinib, was not new: the Court found it had already been disclosed and enabled by an earlier US patent (Zimmermann, US 5,521,184) and published scientific literature. Novartis argued the beta crystal form's superior physical properties, better flow, greater thermodynamic stability, lower hygroscopicity, should count as "enhanced efficacy" under Section 3(d). The Supreme Court rejected that directly: for a pharmaceutical substance, "efficacy" under Section 3(d) means therapeutic efficacy, the capacity to treat the disease, and Novartis had not shown the beta form treated leukaemia any more effectively than the already-known imatinib. The Court accordingly upheld the Patent Office's refusal to grant the patent.

The holding matters at two levels an exam can test independently: the narrow rule (physical or manufacturing advantages without proven therapeutic advantage fail Section 3(d)), and the larger significance (India would not allow patent-term extension through minor reformulation, keeping generic manufacturers free to produce affordable versions of already-known drugs, a stance widely credited with protecting India's role as the "pharmacy of the developing world").

Trademarks: identity protected, and renewable without end

A trademark, governed by the Trade Marks Act, 1999, protects a brand's identity in the marketplace: names, logos, symbols, packaging, and any other mark capable of distinguishing one trader's goods or services from another's. Unlike a patent, a trademark protects recognition and reputation, not a technical solution, so it does not need to expire once its useful life is exhausted.

The term structure is precise and distinct from a patent's fixed 20-year ceiling. A registered trademark is valid for 10 years from the date of registration, and under Section 25(3) it may be renewed indefinitely for successive further periods of 10 years each, on payment of the prescribed fee, with a six-month grace period after expiry (with a surcharge) before the mark is liable to be removed from the register. This is the exam trap worth remembering exactly: a trademark's protection can, in principle, run forever through repeated renewal, while a patent's cannot be extended past its original 20 years under any circumstance.

Copyright: original expression, for life plus 60 years

Copyright, governed by the Copyright Act, 1957 (last substantially amended in 2012), protects original literary, dramatic, musical and artistic works, along with cinematograph films and sound recordings. It protects the particular expression of an idea, a specific text, composition, or artwork, not the underlying idea or fact itself, which is why two authors can independently write about the same historical event without either infringing the other's copyright.

The term differs by category of work, and India's rule for the most common category is worth fixing precisely since several major jurisdictions differ from it. Under Section 22, for a literary, dramatic, musical or artistic work published in the author's lifetime, copyright subsists for the author's life plus 60 years, counted from the beginning of the calendar year following the year of the author's death (for a jointly authored work, from the death of the last surviving author). This is shorter than the life-plus-70 rule that applies in the European Union, the United Kingdom and the United States, so a question that assumes India follows a "life plus 70" standard is testing whether the aspirant has actually checked the Indian figure rather than assumed international uniformity. Separately, for cinematograph films, sound recordings and photographs, copyright runs for 60 years from the beginning of the calendar year following first publication, not from the life of any individual, since these works are typically produced by an organisation rather than a single identifiable author.

Geographical indications: place as the intellectual property

A geographical indication (GI), governed by the Geographical Indications of Goods (Registration and Protection) Act, 1999, protects goods, agricultural, natural, or manufactured, that originate from a specific geographical territory and possess a quality, reputation or other characteristic essentially attributable to that origin. A GI is a collective right, not an individual one: only an association of persons, producers, an organisation, or an authority established by law can apply for registration, and individual producers from the region can then register separately as authorised users of the mark, they cannot be the original applicant themselves.

Darjeeling Tea was India's first registered GI. The official GI Register records "Darjeeling Tea (word & logo)" as application numbers 1 and 2, agricultural goods from West Bengal, registered in the Registry's first year of operation, the period from April 2004 to March 2005. Since then the register has grown into the hundreds, and a few genuinely well-known, officially registered examples worth keeping in memory are Pochampalli Ikat (Telangana), Chanderi Sarees (Madhya Pradesh), Kancheepuram Silk and Madurai Sungudi (Tamil Nadu), Mysore Silk and Coorg Orange (Karnataka), Kullu Shawl (Himachal Pradesh), and Kangra Tea (Himachal Pradesh, agricultural, registered in the Registry's second year, 2005-06). Like a trademark and unlike a patent, a GI registration is valid for 10 years from the date of registration and may be renewed indefinitely for further 10-year periods.

Designs: protecting how something looks, not how it works

The Designs Act, 2000 protects the visual or aesthetic features of an article, its shape, configuration, pattern, ornamentation, or composition of lines and colours applied to it, as distinct from the article's function. This is the cleanest line to draw against a patent: a patent protects what an invention does or how it technically works; a design registration protects only what it looks like. A new, more efficient mechanism inside a kettle is patent subject matter; a distinctive new external shape for that same kettle is design subject matter, and the two can coexist on the same product without conflict.

The term sits between a trademark's indefinite renewability and a patent's hard 20-year ceiling. Under Section 11, a registered design carries copyright in the design for 10 years from the date of registration, extendable once, on application before the original period expires, for a second period of 5 years, for a maximum total protection of 15 years. Unlike a trademark or a GI, that extension is available only once; there is no provision for a further renewal beyond the 15-year ceiling.

TRIPS at the WTO: the minimum-standards regime

The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) came into effect on 1 January 1995 alongside the WTO itself, and the WTO's own description calls it the most comprehensive multilateral agreement on intellectual property to date. Its core requirement is straightforward to state precisely: TRIPS obliges every WTO member to provide minimum standards of protection across patents, copyright and related rights, trademarks, geographical indications and industrial designs, building on the pre-existing Paris Convention (industrial property) and Berne Convention (copyright) and adding substantial obligations where those older conventions were silent or inadequate, particularly on enforcement and dispute settlement. Members remain free to choose how they implement these standards domestically, and may provide stronger protection than the TRIPS floor if they wish, but not weaker.

One specific TRIPS standard is directly responsible for India's own patent term: Article 33 requires that "the term of protection available shall not end before the expiration of a period of twenty years counted from the filing date," which is precisely why the Patents (Amendment) Act, 2002 fixed India's own patent term at 20 years from filing under Section 53, discussed above. This is also the point at which the TRIPS/TRIMS confusion becomes most dangerous: it is TRIPS, never TRIMS, that sets patent, copyright, trademark, GI and design terms and standards. TRIMS, by contrast, has nothing to do with patent terms; it addresses investment measures like local-content rules in goods trade, which is the separate ground DS456 was fought on.

Compulsory licensing: the TRIPS flexibility India has actually used

TRIPS is not an unconditional protection regime for right-holders; it explicitly builds in flexibilities for members to balance IP protection against public interest, and the one India has actually invoked is compulsory licensing, provided for under Article 31. A compulsory licence lets a government authorise a third party to produce a patented product without the patent-holder's consent, under specified conditions: ordinarily the applicant must first have tried and failed to negotiate a voluntary licence on reasonable commercial terms (waived in a national emergency or other circumstance of extreme urgency), the authorisation is considered on its individual merits, and the patent holder must still be paid adequate remuneration. The 2001 Doha Declaration on TRIPS and Public Health clarified that members are free to determine what counts as such an emergency, explicitly naming public health crises including HIV/AIDS, tuberculosis and malaria.

India's own compulsory-licensing power sits in Section 84 of the Patents Act, which lets any interested person apply for a compulsory licence three years after a patent's grant, on grounds that the reasonable requirements of the public with respect to the patented invention have not been satisfied, that the invention is not available to the public at a reasonably affordable price, or that the patented invention is not worked in India.

Natco Pharma's compulsory licence for Bayer's Nexavar (sorafenib) is the case to know precisely, since it is India's first ever compulsory licence granted under the Patents Act. Bayer held the patent on sorafenib tosylate, a kidney and liver cancer drug, and sold it in India under the brand Nexavar at roughly Rs 2,84,000 for a month's therapy, a price the vast majority of Indian patients could not afford. On 9 March 2012, the Controller General of Patents, Designs and Trade Marks granted Natco Pharma a compulsory licence under Section 84 to manufacture and sell a generic version, at a capped price of Rs 8,800 for a month's course (120 tablets), against a royalty to Bayer of 6% of Natco's net sales (later raised to 7% on appeal to the Intellectual Property Appellate Board). Bayer challenged the order before the IPAB and then the Bombay High Court, and lost both times: the Bombay High Court's 2014 judgment recorded that this was, in its own words, the first occasion "after India became a signatory to [TRIPS] that the issue of compulsory licence has arisen for consideration before the authorities under the said Act." The case remains the standing precedent for how far India's Section 84 power can be pushed against an unaffordable patented medicine, and it is the concrete, decided instance any question on TRIPS flexibilities or compulsory licensing is almost certainly pointing towards.

Who administers India's IP, and the National IPR Policy

Patents, trademarks, designs and geographical indications are all administered by a single office: the Office of the Controller General of Patents, Designs and Trade Marks (CGPDTM), functioning under the Department for Promotion of Industry and Internal Trade (DPIIT), Ministry of Commerce and Industry. The GI Registry, based in Chennai, sits under this same office. Copyright is the exception worth remembering precisely: it is registered and administered separately by the Copyright Office, also under DPIIT but a distinct registrar from the CGPDTM, not by the Controller General.

The National IPR Policy, 2016, approved by the Government of India on 12 May 2016 with the stated vision of "Creative India; Innovative India," is the overarching policy framework tying all of this together, with DPIIT as the nodal department and a mandated review every five years. It sets out seven objectives spanning IPR awareness, a stronger legal framework, encouraging IPR generation, modernising IPR administration, enabling commercialisation of IP, strengthening enforcement and adjudication, and building human capital and institutional capacity in the IP ecosystem. It does not create new substantive rights of its own; it is a coordination and modernisation document that consolidated India's till-then scattered IP administration under one coherent statement, with the Cell for IPR Promotion and Management (CIPAM), also under DPIIT, set up to implement it.

Quick revision points

• TRIPS is not TRIMS. TRIPS governs patents, copyright, trademarks, GIs and designs (this chapter); TRIMS governs investment measures like domestic-content rules (the WTO note's DS456 solar cells case). Different agreements entirely.
• Patents Act, 1970: protects a new invention; term 20 years from date of filing (Section 53), fixed to match TRIPS Article 33's minimum. No renewal beyond 20 years, ever.
• Section 3(d): bars a patent on a mere new form of a known substance without enhanced (for drugs, therapeutic) efficacy. Novartis vs Union of India (SC, 1 April 2013): upheld refusal of a patent on the beta crystalline form of imatinib mesylate (Glivec); better flow/stability/hygroscopicity is not "enhanced efficacy."
• Trade Marks Act, 1999: term 10 years from registration, renewable indefinitely for further 10-year terms (Section 25). Unlike a patent, protection can run forever through renewal.
• Copyright Act, 1957: for published literary/dramatic/musical/ artistic works, term is author's life + 60 years (Section 22), shorter than the EU/UK/US life+70 standard. Films, sound recordings, photographs: 60 years from publication, not tied to any life.
• GI Act, 1999: protects goods tied to a geographical origin; applicant must be an association/authority, not an individual. Darjeeling Tea = India's first registered GI (2004-05). Term: 10 years, renewable indefinitely, like a trademark. Other verified examples: Pochampalli Ikat, Chanderi Sarees, Kancheepuram Silk, Mysore Silk, Kullu Shawl, Kangra Tea.
• Designs Act, 2000: protects visual appearance, not function (that's a patent's job). Term: 10 years, extendable once by 5 years, maximum 15 years (Section 11). Only one extension, unlike a trademark or GI.
• TRIPS (WTO, effective 1 January 1995): sets minimum IP protection standards for all WTO members; Article 33 sets the 20-year minimum patent term.
• Compulsory licensing (TRIPS Article 31, Patents Act Section 84): authorises use of a patent without the holder's consent, against adequate remuneration. Natco vs Bayer (Nexavar/sorafenib, licence granted 9 March 2012): India's first ever compulsory licence, Rs 2,84,000 to Rs 8,800 a month, 6% royalty (later 7%); upheld by IPAB and the Bombay High Court (2014).
• Administration: patents, trademarks, designs, GIs all under the Controller General of Patents, Designs and Trade Marks (CGPDTM), DPIIT. Copyright is separate, under the Copyright Office, also DPIIT but not the CGPDTM.
• National IPR Policy, 2016: approved 12 May 2016; vision "Creative India; Innovative India"; DPIIT is the nodal department; seven objectives, reviewed every five years; implemented via CIPAM.