Intellectual property: these legal steps you can take if your IP rights are violated in India

What to do if your intellectual property is infringed in India? According to our lawyer Van Lavanya, as a European company, you have three options: send a Cease & Desist letter, initiate civil or criminal proceedings. She explains when which remedy applies and what to expect at each step.

Cease & Desist letter

When there is counterfeiting (the unauthorized imitation of a branded product) and/or piracy (the unauthorized copying of a product protected by intellectual property rights), the first option available to the aggrieved party is to send a Cease & Desist letter requesting that the infringing acts cease(cease) and remain ceased(desist).

The purpose of this letter is to resolve the dispute quickly and without litigation. Moreover, this means is very cost-effective to enforce IP laws before taking legal action. It is recommended that this letter be sent by an attorney to show that the company is considering legal action.

Should the cease and desist letter not work, the aggrieved party can always decide to go to court. Indian IP law has both civil and criminal approaches for this purpose:

Civil action for IP infringement

The civil action is designed to stop the distribution, manufacture or sale of the infringing product. A choice can be made to bring a claim for damages or to gain insight into the infringing party's accounts.

If insight into the accounts is chosen, the infringing party must hand over the profits they made from the illegal activities to the injured party. In a claim for damages, the court sets an amount to be paid by the infringing party.

During ongoing civil proceedings, the court may even issue injunctions designed to prevent imminent infringement of IP rights. The court can impose an ad interim injunction on the opposing party. This is prohibiting any action with the aggrieved party's product until the dispute is resolved. However, the injured party must be able to show that if the temporary injunction is not granted, it will result in irreparable losses.

The Mareva injunction also protects the interests of the aggrieved party during litigation and is granted to stop the opposing party from selling its products or services until the trial ends.

Further, under a Anton Pillar Order, a company may go to the opposing party's location with a court-appointed commissioner to search and seize relevant documents and counterfeit goods. This may be decided to prevent the removal or destruction of evidence before trial.

If the infringing party is unknown (for example, if it is an e-commerce company), action can still be taken on the basis of a John Doe order. This gives prosecutors the freedom, with the help of a court-appointed commissioner, to raid locations where infringement activity may be occurring.

Learn how to protect your intellectual property already when setting up your entity in India

Criminal proceedings for IP infringement

In India, IP rights are private rights enforceable through civil proceedings. Yet the Trademark Act, the Copyright Act and the Geographical Indications Act, also have criminal remedies. Penalties can range from 6 months to 3 years in prison and a fine of 50,000 to 200,000 rupees (550 euros to 2250 euros).

Under these laws, suspects are subject to prosecution and police can conduct raids and seize property without a court order.

Because criminal investigations take a long time to complete, there is a large backlog of cases in these courts. To get around these years of proceedings, the courts have created an option of plea bargaining. In this case, the offending party accepts its guilt in exchange for remission of jail time and compensation for damages suffered by the injured party.

Always seek legal advice first

It is important to always seek legal advice first about suspecting that someone is infringing on your intellectual property rights. Making threatening demands without proof is illegal.

An intellectual property legal expert can help you determine whether the infringement of your property rights is actionable and where to report it. If you choose to file a civil lawsuit as well, a local IP lawyer can help you file and build a strong case.

The 5 most important things you need to know about Indian business culture

Having a good understanding of the norms, values and customs in India is essential to successfully doing business in the country. We will walk you through the cultural differences you need to be aware of as you take your first steps into the Indian market.

1. Preparation: a good personal relationship with your business partner is essential in India

Personal relationships play a big role in Indian business culture, so it is important to really take the time to build those relationships. For Indians, having confidence in the person being done business with weighs heavily. You are therefore expected to make the effort to get to know your partners and continue to invest in the relationship.

Indians talk more about personal matters during business meetings than we are used to in Europe for this reason. They will also ask you more questions about your private life. Don't shy away from these kinds of questions; it comes across as rude and disrespectful. Try to show interest in the business partner's private life yourself by asking questions and accepting invitations to events such as a birthday party of a family member of your business partner. If you are on a business trip to India is going, keep space available in your schedule for possible dinners and other activities.

2. The first meeting: consider local customs

Before you travel to India, it is important to plan all your appointments at least a month in advance. If you want to set up a meeting with someone you have not met in person, it may help if a third person makes the initial contact. If you already know each other, take the trouble to make an appointment by phone instead of sending an email, as personal contact is also very important for Indians in these kinds of small interactions.

The best time for an appointment is either late morning or early afternoon. It is also advisable to confirm the meeting the week before and call again the day before you get in the car.

A handshake is also the standard way to greet each other in a business setting in India. However, you must keep two things in mind. First, in India business culture is still very hierarchical. If you meet several people at the same time during a meeting, always greet the oldest person present first. Second, if you are a man, it is important that you wait until the female attendees take the initiative to shake hands with you. It is not common in India for men to initiate the greeting with a woman.

Greeting someone with the traditional "Namaste," placing both hands together in front of your chest and making a slight bow, is appreciated and shows respect for Indian customs.

Due to the strong hierarchical structure in India, people are always formally addressed by their title and last name and will also always address you by sir, madam or your title.

3. Etiquettes around business cards in India

When meeting for the first time, business cards are usually exchanged in India after the initial handshake and greeting. A business card always includes your company's full name, occupation, title or specialty, phone numbers, e-mail, and address and website.

Since people in India are used to addressing each other by titles, it doesn't hurt to include your own titles on your business card. This exudes a certain seniority that Indians are sensitive to.

When indicating your business card, always present the card with the text facing the recipient so he or she can read the text. Always give and receive a business card with the right hand or with both hands by holding the card at the ends.

When you receive a business card, always read what is on it, even if you do not understand the text. This shows respect and interest in your business partner. They will conversely do the same. Then put the card in a notebook, side pocket of your bag or the pocket of your jacket.

4. The business meeting: silences during the meeting are a sign of respect

In India, it is considered polite to arrive a little late for meetings and gatherings, but by arriving on time, you can win high praise from your Indian business partners with your punctuality. No strict agenda or schedule is maintained during meetings, so meetings often start and end late.

If you are meeting several people at the same time and they have already joined the conference table, it is good to know that the most important people always sit in the middle, with their assistants on either side. So the least important people always sit at the ends of the table, farthest from the center.

Meetings usually begin with small talk about personal matters and general small talk. This is an important part of doing business and therefore should not be cut short too soon. It is therefore smart to put your Indian partners in charge in this area during your first meetings; they will indicate when the business part of the meeting can start.

Business meetings in India are always very formal and quiet affairs. It is rude to talk loudly or point at other people in the room. Body language is also highly valued; a closed or aggressive attitude, such as folded arms or hands on hips, should therefore be avoided.

In addition, silence is a very normal and even important way in India to show respect for those present. Pausing before answering shows that you have listened carefully to your interlocutor and thought about your answer.

In some companies, interruptions in meetings are not uncommon and people may pick up their phones in the middle of the meeting. If that happens, to remain calm and not show irritation.

5. Negotiation is a long-term affair in India

Because in India trust plays a major role in doing business, you should not expect to be able to close a deal during your first meeting. In India, both the buyer and the seller play an important role in the negotiations and both have to ensure that they come to an appropriate agreement. Therefore, in India, negotiations take place in multiple rounds and closing a deal is seen as a long-term affair.

Therefore, if Indians say "yes" to your proposal fairly early in the negotiations, it does not mean that you have a deal. It purely means that they are listening to you and are interested. In India, everything is negotiable, so be prepared for aggressive proposals and considerable pressure from your business partner. Don't be alarmed by this and take your time to find a compromise point by point. The tough position Indians often take at the beginning of negotiations does not mean they are not reasonable.

Are you curious about how best to communicate with Indians?Read it here:

Country guide India: this is what you need to know about India if you want to do business in the country

India offers interesting opportunities for those looking to tap a new (large!) consumer market, looking for a highly skilled and affordable workforce, or setting up production in a reliable hub with excellent export opportunities in Asia.

Before European companies delve into the business opportunities offered by India, it is also important to have a good understanding of the country, its politics, economy and culture. So that when you take your first steps into the Indian market, you are well prepared. IndiaConnected has therefore listed the most important things you need to know about India.

The Indian economy

In 2022, the Indian economy passed that of the United Kingdom, officially taking the fifth spot among the largest economies worldwide.

India has had consistently high growth rates ranging between 4 and 8 percent year-on-year since the 1980s.

Due to its rapidly growing middle class, India is the third largest economy in the world in terms of purchasing power. In terms of purchasing power parity, India's GDP is estimated to reach $13.1 trillion by 2023.

The sectors that contribute the most to GDP are the service sector and the industrial sector. They account for 53.8 percent and 25.9 percent of GDP, respectively. They are also the country's two fastest-growing sectors, due in part to the country's high level of education and relatively low wages. India's largest sector is still agriculture, which employs nearly 60 percent of India's population. This sector contributes about 20 percent of GDP.

India is one of the favorite destinations for investors worldwide, according to the World Investment Report by the United Nations Conference on Trade and Development (UNCTAD). In the fiscal year 2022-2023, nearly $71 billion in foreign direct investment (FDI) entered the country.

The political system in India

India is a democratic republic with a federal structure. At its head is a president, this is currently Draupadi Murmu. The duties of this president are largely ceremonial. The country's president and vice president are elected every 5 years by a special electoral college.

Executive power lies with the council of ministers (the cabinet), who are led by a prime minister, currently Narendra Modi. The president appoints the prime minister, who is nominated by the ruling political party or coalition. The president then appoints ministers on the advice of the prime minister.

The Parliament of India has two chambers, the upper house called the Rajya Sabha, and the lower house called the Lok Sabha.

Key cultural aspects of India

India is a large and diverse country, better compared to the EU than, say, Germany.

The different Indian states in fact, like European countries, have their own cultural characteristics in terms of religion and language, among others.

Religion

India has six major religions: Hinduism, Islam, Christianity, Sikhism, Buddhism and Jainism. Hinduism is the largest religion in the country; nearly 80 percent of India's population adheres to this religion. Adherence to the other religions is largely concentrated in specific states in the country, for example, concentrations of Muslims are highest in the states of Jammu and Kashmir and Assam, and the number of Sikhs is relatively high in Punjab. In addition to the six major religions, India also has several minor religions, which holidays people get time off from work therefore often varies by individual.

Language

In terms of language, India is also very diverse, with as many as 122 languages spoken in the country. In its constitution, India has recognized and established 22 of these languages as the official languages in the country. The most important of these 22 is Hindi, which is the native language of about 40 percent of India's population and is the official language used by the federal government. English is the second official language of the government and is used by the government mainly in the southern states, where Hindi is neither the official language nor accepted. English is the second most widely spoken language in the country and plays a major role in academic and business contacts in India. Those who travel to India therefore need not worry about communicating with Indians; English is spoken in all states.

Sectors and industrial clusters

The Indian states also differ in terms of climate and available resources, so most states have their own specialties. For example, the southwestern states such as Maharashtra and Karnataka are a suitable base for technical sectors such as automotive, engineering, as well as outsourcing IT and Research & Development teams.

Northern states such as Punjab and Haryana, among others, have thriving agricultural sectors, creating opportunities for food processing and renewable energy industries.

Are you curious about where and what interesting opportunities exist in India for your product or service? In our sector overview, we have listed industry clusters, growth opportunities and other important information for you by major sector.