Civil and criminal remedies under various intellectual property laws for enforcement of intellectual property rights

Table of Contents • • • • • • • • • • • • • • • • • Introduction “All IP infringements are not crimes but all IP crimes are infringements.” In India, Intellectual Property is governed under the In general terms, the IPR is defined as rights attached to the creation of the mind and restricted to only the creator or person authorized by him. A famous maxim “ Criminal implications in IPR infringement In IPR violation, generally, people rob the ideas, inventions, expressions, creativity etc. to gain money, by exploiting the same. In this era of digital technology, such types of wrongdoings are not uncommon. The most popular remedy for IPR infringement is a permanent injunction order from the court which is a civil remedy. As we know, IPR infringement is a violation of the IP rights in personam, which means violation of rights of a particular person/entity and that particular rights holder can take an action against the infringer. But crime is an offence against rem i.e. against the state or nation. That state or nation takes action against the offender. Thus, an interesting question that arises here is whether a criminal remedy is available for IPR infringement? Well, the answer is yes. IPR rights can be protected by both civil and criminal mechanisms. However, only the trademark act and copyright act have provided criminal remedies in case of infringement. Though there is no clear distinction under IPR law provided stating what type of IPR violation will be termed as a crimin...

Abstract This chapter deals with civil and criminal remedies that are available where intellectual property rights are violated. It first considers the civil relief that is available before a trial takes place, namely, interim injunctions and prevention of imports. It then outlines the civil remedies that are available at full trial: final injunction, delivery up or destruction, the awarding of damages, the account of profits, and publicity orders. Finally, the chapter examines the various criminal remedies that intellectual property right holders may avail.

INTRODUCTION In today’s fast pacing world, with the times changing and technology flourishing, there has been a tremendous need to protect Intellectual Property (IP). The reason behind this statement is the infringement of the Intellectual Property and the issues faced by the persons having the authority or the ownership over the IP. It is disheartening to know people’s perspectives wherein not much importance is given to the IP being an intangible asset over tangible assets. There is a dire need to protect Intellectual Property and to acknowledge the fact that by doing so, it will ultimately benefit and shield the IP from infringers. About Intellectual Property Rights To define Intellectual Property Rights (IPR) in simple terms, it is an exclusive right that is possessed by the owner who has the right to trade the same and can make profitable gains from such Intellectual Property. Some of the most commonly known IPs are Copyrights, Trademarks, Patents, Designs, Trade secrets, and Geographical Indications. You must have read or heard about the above-mentioned IPs but are you aware of the remedies available upon infringement of such Intellectual Properties? Before heading towards the legalities, let us first try to understand in brief through an example about the same. Example: A is a well-known wild Life Photographer who has a website of his own on the net where he uploads his captures. One day, B, while surfing through the net comes across A’s webpage and downloads the im...

Mark Cohen argues that a lack of balance created by an excessive focus in trade diplomacy on criminal remedies can manifest itself as a “bias” that disadvantages the leading role played by civil remedies in actual enforcement. He concludes that this appears to be the current situation in the United States with respect to the protection of intellectual property (IP) and warns of the risks of unbalanced trade diplomacy. Today, “IP infringement” and “IP theft” coexist as two terms that describe different behaviors and often demand different remedies. The terms overlap but also conflate approaches to enforcing intellectual property. IP infringement covers all forms of intellectual property misappropriation. IP theft implicitly focuses on criminal remedies but also covers other actions such as hacking of computer systems and state-directed forced technology transfer. An effective IP-enforcement regime needs a robust set of remedies appropriate to the type of right and the infringing conduct. A lack of balance created by an excessive focus in trade diplomacy on criminal remedies can manifest itself as a “bias” that disadvantages the leading role played by civil remedies in actual enforcement. This appears to be the current situation in the United States. A balance between civil and criminal remedies was at one time inherent in U.S. policy and in foundational international treaties. The standing policy of the Department of Justice accords a primacy to civil remedies. The Departme...