Intellectual Property Law (India)

Four rights, four jobs

"Intellectual property" is not one thing. India recognises several distinct rights, each protecting a different kind of creation, governed by different statutes and registries. Choosing the wrong one — or assuming a single registration covers everything — leaves gaps a competitor can exploit.

The main rights

• Trademark (Trade Marks Act 1999): Protects brand identifiers — names, logos, taglines, sometimes shapes and sounds — that distinguish your goods or services. It can last indefinitely if renewed.
• Copyright (Copyright Act 1957): Protects original literary, artistic, musical and dramatic works, plus software (treated as a literary work) and creative content. It arises automatically on creation; registration is optional but useful as evidence.
• Patent (Patents Act 1970): Protects new inventions — products or processes that are novel, involve an inventive step, and are capable of industrial application. It is a strong but time-limited monopoly (20 years) and requires registration.
• Design (Designs Act 2000): Protects the visual appearance of a product — shape, configuration, pattern, ornament — as applied to an article, not its function.

How they fit together

A single product can attract several rights at once. A software product might hold copyright in its code, a trademark in its name and logo, and a registered design in its UI's visual look — while a patent could, in narrow cases, cover an underlying technical method. Map your assets to the right protection rather than relying on one.

Practical India guidance

Start with an IP audit: list your brands, creative works, code, inventions and product designs, and note which right fits each. Prioritise registrations that are both valuable and vulnerable — your core brand name and logo are usually first, because trademark rights are strongest when registered. Lekha's templates, from the Trademark Assignment to the Software EULA, support the later steps once you know what you hold.

Common mistakes

• Believing a company registration or domain name gives trademark rights — it does not.
• Trying to "patent" a logo or "copyright" a brand name — wrong right for the asset.
• Ignoring designs, then watching a competitor copy a distinctive product look.

Takeaway: Each IP right has a specific job — match your brand to trademarks, your content and code to copyright, your inventions to patents, and your product look to designs.

Why register a trademark

An unregistered mark can attract some protection through the common-law action of passing off, but a registered trademark under the Trade Marks Act 1999 gives you a clear statutory right, a presumption of validity, and the ability to sue for infringement. For most businesses, registering the core brand is the highest-value IP step.

The registration journey

• Classes: Trademarks are registered for specific classes of goods or services under the NICE classification (45 classes). You file in the classes that match your actual and intended business — a software brand and a clothing brand sit in different classes.
• Search and application: Run a search on the IP India database first to avoid colliding with an existing mark, then file (commonly online) with the mark, applicant details and class.
• Examination: The Registry examines the application for distinctiveness and conflicts and may issue an examination report, which you must answer.
• Publication and opposition: An accepted mark is published in the Trade Marks Journal. Third parties then have a window (four months) to oppose it. If opposed, both sides file evidence and the Registry decides.
• Registration and renewal: Once registered, the mark is protected for 10 years and is renewable indefinitely in further 10-year terms.

™ versus ®

You may use the ™ symbol on any mark you claim, registered or not. The ® symbol may only be used once the mark is actually registered — using ® on an unregistered mark is itself an offence under the Act. So a pending application stays at ™ until the certificate issues.

Practical India guidance

File early — Indian trademark rights reward first use and first filing, and squatting on brand names is common. Keep dated evidence of use (invoices, packaging, advertising), as it matters in oppositions and renewals. Diarise the renewal date well in advance; a lapsed mark can be removed from the register.

Common mistakes

• Filing in the wrong class, leaving the actual business unprotected.
• Using ® before registration is granted.
• Missing the opposition deadline against a copycat, or missing your own renewal.

Takeaway: Search, file in the right classes, respond to examination and opposition, and use ™ until the mark is registered and ® thereafter — then guard the renewal dates.

Protection without paperwork

Under the Copyright Act 1957, copyright in an original work exists automatically the moment the work is created and fixed — you do not have to register it. Registration is optional, but a registered copyright is useful evidence of ownership and the date of creation if you ever need to enforce. The right covers literary works (including software code), artistic works, music, films and more.

Who owns it — Section 17

The default rule is that the author is the first owner of copyright. But Section 17 contains important exceptions:

• Employment: Where a work is made by an author in the course of employment under a contract of service, the employer is generally the first owner, absent an agreement to the contrary.
• Commissioned works: For certain commissioned works (such as photographs, paintings or portraits made for valuable consideration), the person who commissioned them may be the first owner.
• The independent-contractor gap: A freelancer or agency working under a contract for services is usually not an employee — so they may retain copyright in what they create unless there is a written assignment. This catches out many businesses that paid for work but never secured the rights.

Assigning copyright — Sections 18–19

Copyright can be transferred by an assignment under Section 18, but Section 19 sets formal requirements: the assignment must be in writing and signed by the assignor, and should specify the rights assigned, the duration and the territory. If duration is not stated, it is taken to be five years; if territory is not stated, it is taken to be India. So loose, oral or vague transfers can fail to give you what you expected.

Practical India guidance

Never assume payment equals ownership. Whenever you commission code, design or content from a contractor, take a written assignment that meets Section 19. Lekha's Copyright Assignment template provides the written, signed transfer the Act requires; for staff, build assignment into the employment contract (covered in Module 6).

Common mistakes

• Paying an agency for a logo or codebase but never taking a written assignment, so they keep the rights.
• Relying on an oral "it's all yours" — Section 19 needs writing and a signature.
• Leaving duration or territory blank and being surprised by the default limits.

Takeaway: Copyright is automatic, but ownership turns on Section 17 — and for anyone who is not an employee, only a written, signed assignment under ss.18–19 actually transfers the rights to you.

The strongest, narrowest right

A patent under the Patents Act 1970 gives a 20-year monopoly to make, use and sell an invention — but it is hard to get and expensive to maintain. To qualify, an invention must be novel (new, not disclosed anywhere before filing), involve an inventive step (not obvious to a skilled person), and be capable of industrial application.

What cannot be patented — Section 3

Section 3 lists subject matter that is not patentable in India. It is worth knowing because it excludes many things businesses assume they can patent:

• Mere discoveries of scientific principles or abstract theories.
• Methods of agriculture or horticulture, and certain medical treatment methods.
• Business methods, mathematical methods and algorithms as such.
• A "mere" computer program per se — the software caveat below.

The software caveat

Under Section 3(k), a computer program "per se" and algorithms are not patentable. In practice, this means standalone software is generally protected by copyright, not patents. An invention that uses software but delivers a genuine technical effect or works with novel hardware may, in narrower cases, be patentable — but a plain app or business-logic program usually is not. Do not build your protection strategy around patenting your code; protect it as copyright and through licensing instead.

Licensing a patent — Section 68

A patentee can license others to work the invention while keeping ownership. Under Section 68, an assignment or licence of a patent must be in writing and the document should set out the terms; recording it with the patent office is advisable. A licence can be exclusive or non-exclusive, limited by field, territory and term, and should address royalties and improvements.

Practical India guidance

File before you publish or pitch — any public disclosure before filing can destroy novelty. Use a confidentiality agreement when discussing an unfiled invention. For commercialising a granted patent, a clear written licence is essential; Lekha's Patent Licence template gives you a structured starting point covering scope, royalties and term.

Common mistakes

• Disclosing the invention publicly before filing and losing novelty.
• Trying to patent plain software and being refused under s.3(k).
• An oral or undocumented licence that fails the writing requirement.

Takeaway: Patents demand novelty and an inventive step, exclude much under s.3 (including software per se), and must be licensed in writing under s.68 — for most code, copyright and licensing are the realistic protections.

Software lives or dies by its licence

Software is protected by copyright, but copyright alone only stops copying — it does not, by itself, set the terms on which others may use your product. That is the job of a licence. Whether you ship a product or consume open-source components, the licensing terms govern what is and is not allowed.

Your EULA

An End-User Licence Agreement (EULA) grants users a right to use your software on stated terms while you keep ownership. A solid EULA covers the scope of the licence (per-user, per-device, subscription), restrictions (no reverse engineering, no redistribution), IP ownership, warranty disclaimers, limitation of liability, data and privacy handling under the IT Act 2000 and applicable data-protection law, and termination. Lekha's Software EULA template is a practical starting frame.

Open-source licence compatibility

Most products are built on open-source software (OSS), and each OSS component comes with its own licence carrying obligations. Broadly:

• Permissive licences (such as MIT, BSD, Apache 2.0) let you use, modify and redistribute with light conditions — typically keeping notices and attributions.
• Copyleft licences (such as GPL) can require that derivative works you distribute are themselves released under the same terms — a serious consideration if you ship a proprietary product. "Weak copyleft" licences (such as LGPL) are narrower.

"Compatibility" means ensuring the OSS licences in your stack can lawfully co-exist with each other and with how you distribute your product. Mixing a strong copyleft component into closed-source software you distribute can create obligations you did not intend.

An open-source policy

Growing teams need an OSS policy so engineers know which licences are approved, which need review, and how to record what is used. It typically requires a dependency inventory, an approval step for restrictive licences, and notice/attribution compliance. Lekha's Open Source Policy template provides this governance scaffold.

Common mistakes

• Shipping a proprietary product that pulls in a strong-copyleft dependency without realising the obligations.
• No EULA, so users' rights and your protections are undefined.
• No inventory of OSS licences, making audits and compliance impossible.

Takeaway: Govern software with a clear EULA for what you ship and an OSS policy for what you consume — and check that the open-source licences in your stack are compatible with how you distribute.

Owning what your people create

An IP strategy is only as good as your chain of title — proof that the business actually owns the rights it relies on. The two biggest leaks are IP created by employees and contractors, and IP created by founders before the company existed. Close both with clear assignments.

Recording assignments with the registry

When IP is assigned, recording the transfer with the relevant registry protects you. A trademark assignment should be recorded with the Trade Marks Registry so the register reflects the true owner; a patent assignment or licence should be recorded with the patent office (Section 68 of the Patents Act 1970). Unrecorded transfers can cause problems in enforcement, due diligence and future dealings, even where the underlying assignment is valid between the parties.

Pre-invention assignment in employment contracts

For copyright, an employer is usually the first owner of works made in the course of employment under s.17 of the Copyright Act 1957 — but patents and other rights are not automatically the employer's. The reliable fix is a present assignment of future IP clause in every employment contract: the employee agrees that IP created in the course of employment is assigned to the company, agrees to cooperate with registrations, and waives or addresses moral rights where appropriate.

• Cover all relevant rights (copyright, patents, designs), not just copyright.
• Tie the assignment to work created in the scope of employment, and keep it reasonable.
• Include a duty to assist with filings and recordals after the fact.

Lekha's Employee IP Assignment template provides this clause set; use it from the first hire, not after a dispute.

Founder IP — the diligence killer

Founders frequently build the first prototype, brand or code before incorporating. That IP is personally owned until it is formally assigned to the company. Investors' due diligence routinely flags missing founder assignments, and an unsigned chain of title can delay or derail a funding round. Have each founder execute an assignment transferring all pre-incorporation and ongoing IP into the company.

Common mistakes

• Assuming all employee output is automatically the company's — true for copyright, not for patents.
• Never recording a trademark or patent assignment with the registry.
• Founders holding key IP personally, surfacing as a red flag during diligence.

Takeaway: Build a clean chain of title — present-assignment clauses for every employee and contractor, founder assignments into the company, and proper recordal with the registry so your ownership stands up to scrutiny.