Private International Law Issues in Intellectual Property Law in India

Abstract

International contracts include matters related to intellectual property and require private enforcement i.e. legal measures taken by private parties. Such legal measures are based on the territoriality principle and determined by the law of the country where the suit is instituted. A vibrant private international law, which recognizes the expressive and constitutive capacity of judicial decision-making, can make contributions to the system well beyond the resolution of private disputes. In the traditional system governing issues related to intellectual property, national courts have had very little role to play in the construction of international intellectual property law. Litigation involved only national rights as explained within the municipal law on intellectual property rights; courts were reluctant even to adjudicate claims involving foreign intellectual property rights, leading to serial national litigation of multinational disputes, often on the basis of the similar right, guaranteed according to the municipal law system prevailing in that forum. However, it did cause national courts to take cognizance of matters having cross-border implications leading to the entry of private international law into the rubric of intellectual property rights. This chapter attempts to present the Indian position on the grounds that explain Indian courts’ jurisdiction in cross-border intellectual property disputes; the laws that govern the ownership, validity and infringement of IPRs and the difficulties with regard to enforcement of foreign court orders.