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Friday, 2 December 2011


Broadly, IP rights in India can be enforced by two ways – Civil action and Criminal action.

Civil action: As and when a party proposed to take a civil action against any infringer, it has to file a Suit for infringement or passing off in a High Court or a District Court (Both courts have jurisdiction). If the Plaintiff has a good prima facie case, Indian Courts are very prompt in granting ex parte Injunctions, restraining the Defendant, his agents, servants etc. from infringing a Trade Mark/Copyright/patent or a design of the Plaintiff. Once an ex parte injunction is granted,in most of the cases, the matter is settled between the parties and a Compromise Decree is passed by the Court in favour of the Plaintiff and against the Defendant. This entire process takes a period of approximately one month to four months. However, an ex parte injunction can be obtained within about three days or so after receiving the documents and instructions from the client.
In case the Defendant fights the case, in that case also, the trial of the entire Suit can be finished within a maximum period of two years, depending upon the caliber and efficiency of the Lawyer representing the Plaintiff in the Court. This has become possible because there have been changes in the Indian Civil Procedure Code, whereby now evidence is led by way of Affidavits instead of oral evidence as heretofore.

Criminal action: In so for as criminal actions are concerned, in case the counterfeiting goods are available on a large scale in the market, and a Mark, or a copyright is infringed at different places, we generally advise our clients to file a Criminal Complaint before the Court of Metropolitan Magistrate and obtain Search & Seizure Orders against Unknown persons/firms etc. After receiving instructions from the Clients with complete address of the Accused along with necessary documents, we at Aggarwal Associates can assure our clients that we shall be in a position to obtain Search & Seizure Orders from the court within ten days or so after receipt of the instructions. Once Search & Seizure Orders are obtained from the Court, the raids can be got conducted with the help of the Police and fake/duplicate goods can be recovered and seized by the police and the same remain in Police custody.
Criminal action leads to criminal prosecution. Once raids are conducted, goods are seized and Police files its report before the Metropolitan Magistrate, charges are framed against the accused and immediately thereafter from the same day, the criminal prosecution turns out to be a State case, meaning thereby that it becomes a case between the State and the accused, and the Counsel for the Complainant or the Complainant need not attend the matter.
Of late there is an increase in patent infringement cases and case law is developing quite fast in this complex field also.

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