Intellectual property

Third-party links, content and licences

Can a website owner link to third-party websites without permission?

Any hyperlinking of a domain name of a third-party website without the express permission of the third- party trademark owner may be construed as infringement under the trademark law.

Can a website owner use third-party content on its website without permission from the third-party content provider? Could the potential consequences be civil in nature as well as criminal or regulatory?

No. Use of any third-party content on the website without the consent of the third-party content provider constitutes copyright infringement, unless such use is recognised as fair use under the Copyright Act 1957 (the Copyright Act). In terms of the Copyright Act, the potential consequences for copyright infringement could be civil as well as criminal in nature. For instance, in the case of copyright infringement, the owner of the copyright may be entitled to civil remedies such as an injunction and compensation or direct damages; or there may be criminal remedies in the form of imprisonment or fines in cases where a person knowingly infringes or abets the infringement of copyright.

Can a website owner exploit the software used for a website by licensing the software to third parties?

No. A website owner cannot exploit any software used for a website by licensing the same without prior consent from the copyright owner of the software. Such right to sub-license the software would depend upon the licence agreement between such website owner and the copyright owner of the software.

Are any liabilities incurred by links to third-party websites?

Hyperlinking a third-party website without consent from the owner of such website may constitute trademark infringement and Indian courts may grant a permanent injunction restraining the use of the impugned trademark. There are a few judicial precedents wherein courts have awarded punitive damages in addition to compensatory damages for infringement of trademark.

Video content

Is video content online regulated in the same way as TV content or is there a separate regime?

Programmes aired on television in India are required to follow the programme code under the Cable Television Networks Rules 1994 (the Programme Code) prescribed under the Cable Television Act. Strictly speaking, the Programme Code is applicable to content on cable television and not to content made available over the internet. However, content-related restrictions and prohibitions are spread across multiple laws which are medium-agnostic (some of which have been discussed earlier) and more or less echo restrictions and prohibitions contained in the Programme Code.

IP rights enforcement and remedies

Do authorities have the power to carry out dawn raids and issue freezing injunctions in connection with IP infringement?

Yes. For instance, the Copyright Act empowers police authorities in India to seize infringing copies if the officer concerned is satisfied that an offence in respect of the infringement of copyright in any work has been committed. There have also been a few occasions where courts have passed orders in the nature of Mareva injunctions in India to restrain the defendants from disposal of their assets until conclusion of the trial or pending judgment in infringement actions instituted by IP owners.

What civil remedies are available to IP owners? Do they include search orders and freezing injunctions?

Ordinarily the relief sought by IP owners includes:

  • permanent injunction restraining defendants from infringing the owner’s IP rights;
  • permanent injunction restraining the defendant from selling the infringing product;
  • destruction of goods infringing the IP rights;
  • submission or seizure of books of accounts of the defendant;
  • compensation in the nature of damages; and
  • in a few cases, punitive damages.

Indian courts do not ordinarily grant punitive damages, but there have been a few instances where they have been awarded in matters involving IP infringement.