India: Transformation Of IP Laws And Its Effects

Last Updated: 8 May 2015
Article by Himanshu Sharma

Most Read Contributor in India, September 2016

India being a country of 1.2 billion people is a big consumer market for multi-national corporations. Although it is an emerging economy of the world and current year target for the economic growth is around 8.5% according to the finance minster, then also the rate of literacy is quite low. When compared to the literacy of Intellectual property rights, it is even lower than the literacy rate. People do not have proper knowledge regarding the IP rights they have in the business they are doing. Further the IP laws in India are still in their initial stages of development and still they have a long way to go to come at par with the international IP laws standard.

Although the Indian IP Laws are still in the initial stages of development but the same is in conformity with the international IP law as India is a signatory to Paris Convention for the Protection of Industrial Property, Berne convention on copyright and TRIPS Agreement. There are numerous examples where a legal issue comes in the court which has never been dealt earlier and our law has still not developed to a level where we can deal with the issue. In these cases the Courts have time and again taken help of the foreign laws and judgments in order to solve the problem put forward to it.


One of the most important objectives of the Indian Trademark Act, 1999, is the simplification and harmonization of the law in an era of increasing globalization. Being a signatory to the international convention for protection of Industrial property (Paris Convention) and the TRIPS Agreement, the Indian Law on Trade Marks is fully compatible with the provisions of these international agreements. The Parliament has clearly expressed its intention to harmonize the law in a global economy. The administration of the new law will thus have to be in consonance with this development.

The need for the harmonization of laws was recognized earlier in the case of Shredded Wheat Co. Ltd V. Kellog Co. G.B. Ltd1 where it was held that "it is of the highest importance that in such an important branch of commercial law as relating to trademarks, there should be uniformity as far as possible in all countries administering the same system of law."

Although the laws in a particular country may be in its initial stages of developments, as in case of India, but then also it should be in conformity with the international standards as laws are dynamic in nature and keep on developing with the society and time. It should be inclusive so that it should not become redundant with the development in the field.

On the issue of conflict between the international laws and Indian law the Hon'ble Supreme Court of India in case of Gramophone Company of India Ltd V. Birendra Bahadur Pande2 opined that "the doctrine of incorporation also recognize the position that the rules of international law are incorporated into national laws and considered to part of the national law, unless they are in conflict with an Act of Parliament, Comity of Nations or no. Municipal law must prevail in case of conflict. National Courts cannot say "yes" if Parliament has said 'no' to a principle of international law. National Courts will endorse international law, but not if it conflicts with national law...but the Courts are under an obligation within legitimate limits, to so interpret the Municipal statute as to avoid confrontation with the comity of Nations or the well established principles of International law. But if conflict is inevitable, latter must yield"

The law related to Intellectual property is in conformity with the international law hence in cases of conflict, it will be national law which will prevail. The legislation enact laws on the basis of the conditions prevailing in the country and hence if something which is a part of the international law, has been left out by the legislation then it is obvious that it will not prevail although same is a part of international legislations.

In Lauterpacth in International law (General Works) summarizes the position this way:

"While it is clear that international law may and does act directly within the state, it is equally clear that as a rule that direct operation of international law is within the state, subject to overriding authority of municipal law. Courts must apply statutes even if they conflict with international law. The supremacy of international law lasts, pro fore interno, only so long as the state does not expressly and unequivocally derogate from it. When it thus prescribed a departure from international laws, conventional or customary, judges are confronted with a conflict of international law and municipal law and, being organs appointed by the state, they are compelled to apply the latter"

If national law is silent on a particular subject and same question comes up to a court then in those cases the Courts can refer to the international laws. It could not be assumed that the national law on the particular point is overridden by the international law because it is only in those cases where there is a gap left in the national enactment and same can be filled with the help of the international law.

In case of Vishakha V. State of Rajathan3, the Hon'ble Supreme Court of India held that "when the specific provisions of law are silent, then the gap can be filled by international conventions."


As the IP laws in India are still in the initial stages of development and hence there are certain points of law which are still not dealt by the Indian Courts. In these cases the courts can refer to the judgment of the courts of the countries whose laws are in conformity with the Indian legislations on the same points. The Trademarks Act, 1999 is largely based on the policy outlined in the White Paper on Trademark law Reform presented by the British Government to its parliament and thus is in conformity to a great extent to the UK Trade Marks Act 1994.

In case of Forasol V. Oil and Natural Gas Commission4, the Hon'ble Supreme Court of India held that "in the absence of any binding authority of an Indian Court on a particular point of law, English decisions in which judgment are delivered by judges held in high repute can be referred to as they are decisions of Courts of a country from which Indian Jurisprudence and a large part of our law is derived, for they are authorities of high persuasive value to which the court may legitimately turn for assistance, but whether the ruled laid down in any of these cases can be applied by Courts must, however, be judged in the context of our own laws and legal procedure and the practical realities of litigation in our country"

The Indian Courts while taking the authorities of the foreign courts has to keep in mind few things as mentioned by the Hon'ble Supreme Court of India in the above judgment such as:

  • Whether the legal point has not yet been discussed by Indian Courts;
  • Whether the law of the country (whose judgment is referred) should be in conformity of Indian Laws;
  • Whether the foreign judgment should be looked in as per the practical realities of our countries litigation;

If the foreign judgment referred met the above criteria then the Indian courts can take same into consideration.


Intellectual Property Laws in India are in a transition phase wherein everyday a new question of law discussed in the courts and the interpretation of law is subject to individual discretion. It is the duty of the courts to minimize the conflicts of International IP laws and Indian IP laws. It is an accepted rule of law that in case of conflict between the two, the local laws prevail as they are the essence of local conditions. When a question arise which is yet to be dealt by the local law then the help of the foreign judgments can be taken keeping in mind the condition mentioned by the Supreme Court.


1. (1940)57 RPC 137 (HL) p.149

2. AIR 1984 SC 667

3. AIR 1997 SC 3011

4. AIR 1984 SC 241

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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