India and Global IPR Treaties

Not just looking at the issues from first principles but also giving special attention to China’s engagement with international IPR treaties because it is a good case study on how to navigate the international IPR regime and has useful lessons for India. This is a shortened version of the full document, available in full on our website www.csconversations.in

Executive Summary

To become an international player in the knowledge economy, India needs to take global IPR treaties more seriously as these agreements create the framework for the country’s R&D ecosystem to align with global best practices and accurately benchmark our performance with international peers. In this EAC-PM Working Paper, we explore 4 such international agreements and look at the pros and cons of each of them. These are the Strasbourg Agreement Concerning the International Patent Classification 1971, Geneva Act of the Hague Agreement on Industrial Designs 1999, Geneva Act of the Lisbon Agreement on Geographical Indications 2015 and the Design Law Treaty 2024.

In this paper, we not just looked at the issues from first principles but have also paid special attention to China’s engagement with international IPR treaties because it is a good case study on how to navigate the international IPR regime and has useful lessons for India. A brief summary of our suggestions is provided below:

The Strasbourg Agreement on patents simply entails an obligation on the national patent office to label patent applications as per the international IPC system of classifying inventions. Since India follows the IPC system anyway, signing the treaty does not have any obvious downside.

The Geneva Act of the Hague Agreement on industrial designs creates a simplified and time-bound process for international registration of designs in multiple countries through a single application. India must sign the treaty with adequate safeguards to ensure it gets sufficient time to build its internal capacity to process international application.

The Design Law Treaty which was just negotiated and signed in November 2024 at Riyadh, also makes procedural improvements in filing and recording changes in design licenses.

The Lisbon System on Gls again creates a simplified and time-bound process for international registration of Gls. However, it requires greater stakeholder consultation since it will entail substantive changes in the GI Act 1999 and India must weigh the domestic sensitivities and benefits for stakeholders before signing up for the treaty.

India must shed its traditional reticence to participate in international best practices that are critical to making India the center of the global knowledge economy. For far too long, India’s policies have been tuned to be defensive in benchmarking ourselves to global standards. This is ultimately counter-productive since we ultimately accept those foreign innovations anyway. We need to reimagine ourselves as the hub of innovation and switch to a system where our innovators can play on the world stage.

Introduction

To study India’s engagement with international IPR treaties and their impact on our domestic innovation ecosystem, it is important to begin by first looking at our national experience with the IPR treaties we have signed so far. Historically, India has been more proactive in signing international treaties on protecting artistic and literary works rather than scientific inventions. The two foundational international agreements on IPR that are administered by WIPO are Berne Convention for the Protection of Literary and Artistic Works 1886 (“Berne Convention”) and the Paris Convention for the Protection of Industrial Property 1883 (“Paris Convention”).

While India has been a signatory to the Berne Convention pre-independence since 19282, we only signed the Paris Convention in 19983. China by contrast, signed the Paris Convention in 1985 and the Berne Convention only in 1992. In other words, unlike India, China has been more focussed on technology IPRS rather than artistic IPRS. India’s experience suggests that signing and ratifying international IPR agreements has led to an improvement of our domestic IPR regime. For example, India’s accession to the TRIPS regime in 1995 under the WTO framework nudged us to sign the Patent Cooperation Treaty and update the Patents Act which was TRIPS-compliant but also protected our strategic interests. The new Patents Act ensured that we become the pharmacy to the developing world and is now the gold standard for developing countries around the world.

Similarly, acceding to the Madrid System for International Registration of Trademarks in 2013 created the incentive to introduce the new Trademark Rules in 2017 which completely overhauled the trademark system in India so that the time period for registration of trademarks has come down significantly. The office is completely digital and even the hearings are online. In fact, practitioners today note that physical filing is more expensive than online filing. So far, the experience has been good while we continue to upgrade our capacities to process international applications.

In light of these experiences, India must consider engaging with other IPR treaties while keeping in mind that each of them will entail differing levels of groundwork from our IPR institutions and amendments to the existing law for India to be able to benefit from its provisions. The larger point we make in the paper is about the need for the country to change from a defensive to an offensive posture on opening our systems to international best practises, while being mindful of practical constraints in implementation.

Strasbourg Agreement Concerning the International Patent Classification 1971

The Strasbourg Agreement Concerning the International Patent Classification 1971 (“Strasbourg Agreement”) establishes the International Patent Classification (IPC) system that divides inventions into eight categories with approximately 80,000 classification codes. Each group is represented by a symbol consisting of Arabic numerals and the letters of the Latin alphabet.

With an exponential growth in the number of patent applications filed and granted in India (increasingly by domestic entities), IPC classification helps benchmark standards of Indian innovation compared to other countries in a particular sector and ensure India’s contribution to global R&D is not under-represented. Indian innovators looking to license their innovations outside India or find interested parties for tech transfer will also understand the landscape for their product by looking at the IPC classification. Our recommendation is that India should sign and ratify the Strasbourg Agreement since it anyway complies with its provisions but is unable to participate as a member to the treaty and is not able to utilize the full benefit at present.

Hague Agreement Concerning the International Registration of Industrial Designs

Industrial design is a specific IPR which protects the aesthetic or outward appearance of a product such as its unique shape, pattern and colour combinations. Some examples of industrial design include the unique shape of an iPhone, shape of a Coca Cola bottle and the outward appearance of a Volkswagen Beetle.

The Hague Agreement Concerning the International Registration of Industrial Designs (“Hague Agreement”) constitutes two separate treaties: The Geneva Act of 1999 and The Hague Act of 1960. The 1999 and the 1960 Acts of the Hague Agreement are autonomous and totally independent of each other. Both Acts consist of a fully fledged international treaty, so that a State may decide to become a party to only one or to both Acts. The Hague Act of 1960 has 34 contracting parties while the Geneva Act of 1999 has 74 members 10. China did not accede to the 1960 Act but is a signatory to the 1999 Act since 2022.

The Hague Agreement creates a simplified and time-bound process for the international registration of industrial designs in multiple countries through a single application filed with WIPO. It also simplifies the management of an industrial design registration, since it is possible to record subsequent changes and to renew the international registration through a single procedural step in the International Register with the WIPO11.

The Hague Agreement on Industrial Designs will bring India in alignment with international best practices followed by most mature economies and simplify the process of registering the Designs in multiple countries through a single application. This is faster, cheaper and simpler than filing applications individually in each country where you need different documents, in different languages and pay different fees to register designs. Similarly post-grant management of registered designs like maintenance and renewal fees, updates on assignees and licensees will also be streamlined with a single application.

We recommend that India sign the Hague Agreement with adequate safeguards to ensure that our systems are not overwhelmed and there is enough internal capacity to process the international applications in a timely manner. This may include carving out exceptions against single application for multiple designs and deemed registration.

Lisbon System for International Protection of Geographical Indications

Geographical Indication is a distinctive mark on a product which has a precise geographical origin and has qualities associated with it because of the natural and human factors uniquely available in that geographical area. Some examples of Gls are Darjeeling tea, Basmati rice and Champagne sparkling wine. Like the Hague Agreement, the Lisbon System comprises two treaties the Lisbon Agreement for the Protection of Appellations of Origin (AOS) and their International Registration 1958 and its updated version, the Geneva Act of the Lisbon Agreement 2015 which extended the protections to Geographical Indications (GIS). The Geneva Act has 35 contracting parties including the European Union and African Intellectual Property Organization which has 17 member countries.

Like the Hague Agreement, the Lisbon System protects AOS and GIS in foreign jurisdictions by simplifying the process of registration in multiple countries through a single application with WIPO instead of individual application in each country with its own fees, procedures, documentation and language requirements. These procedural improvements to create centralized management of GI rights will greatly reduce the administrative burden on both the IPR authorities protecting GIS and the applicants who will be able to choose countries where they would like to protect their design after obtaining a certificate of international registration. The Lisbon System also ensures that Gls in all member countries are protected indefinitely, cannot become generic and no other competitor can use the GI name on any product in its product class14

In India, Gls are protected under the Geographical Indications of Goods (Registration and Protection) Act, 1999. The Lisbon Agreement on Gls will entail even bigger changes in our domestic law and procedures with fewer flexibilities than the Hague Agreement. The Lisbon Agreement demands indefinite protection for Gls with no provision for renewal. In India presently, while the protection is for an indefinite period period it is subject to a 10-year renewal period. The Agreement also mandates a higher standard of protection to all goods to prevent any imitation or usurpation, currently only extended to wines and spirits under Indian law. This might create issues for our domestic industry especially in the dairy sector.

We recommend that India needs to properly weigh the sensitivities and implementation challenges with the possible benefits, if at all India plans to sign the Geneva Act of the Lisbon Agreement 2015.

Design Law Treaty

The Design Law Treaty (DLT) that was negotiated in Riyadh in November 2024 and signed by India is again focussed on making procedural improvements to cut down the red tape for filing of industrial design applications in India and registering their assignment/license with the Designs Office.

The treaty seeks to make the procedures related to filings and recording changes in design licenses simple, predictable and affordable, which will benefit both foreign and domestic innovators. Any changes required in the design license upon assignment to another entity will also be streamlined through a single application and submitting a limited number of documents as per international best practices to the IPR office. By way of illustration, if there is a change of ownership, a consolidated application with one fee and one application for multiple designs may be accepted. Furthermore, only a limited number of documents like the assignment deed may be required in case of transfer of title in a registered design.

Conclusion

This EAC-PM Working Paper looks at the pros and cons of 4 major IPR agreements administered by WIPO which relate to streamlining the procedures for filing, registering and managing IPRS in foreign jurisdictions. In summary, on recommendations on the four agreements are as follows:

Of the four agreements, the Strasbourg Agreement on patents will entail no change in our domestic law while the two treaties on industrial designs (Hague Agreement and Design Law Treaty) will require amendments to the provisions of Designs Act 2000 that deal with procedural elements. The Lisbon System on Gls requires greater stakeholder consultation since it will entail substantive changes in the GI Act 1999.

Since independence, our IPR system has been defensive because we started with the assumption that Indian innovators cannot compete with international counterparts. This is no longer the case with an unprecedented rise in domestic filings of IPR and even MNCs generating IPRS in India with their global capability centers. Therefore, we need to take an offensive stance to IPR today as Indian entities are as likely to generate these IPRS with tremendous economic potential in the global markets.

All the four agreements will require India to enact enabling provisions for international applications and check for the system-readiness for e-processing of applications, including deploying additional manpower to meet the timelines. In the short term, the major beneficiaries will be foreign applicants but given the rising number of domestic IPR filings over the last few years and India’s aspiration to emerge as the manufacturing and R&D hub of the world, signing these agreements and aligning with the international best practises will send the right signals to domestic and foreign entrepreneurs about India’s commitment as a protector of IPR and showcasing itself as an IPR-savvy destination.

We need to move away from the fear that these changes will only benefit foreign applicants given the rising number of domestic IPR filings over the last few years. If India wants to be a major R&D hub and a place for cutting edge manufacturing and IP generation, we need to move away from a defensive to an offensive posture. Instead of defending domestic markets, our focus must be on laying the groundwork for Indian innovators to capture global markets.

This presentation is an EAC-PM working paper co-authored by the two writers.

ABOUT THE AUTHORS

Sanjeev Sanyal is a member of Prime Minister’s Economic Advisory Council. He has worked on several editions of the Economic Survey of the Ministry of Finance. He has authored several books, including ‘Revolutionaries’, that was recently released by Home Minister Amit Shah.

 

 

Apurv Kumar Mishra is presently serving in the Government of India as a Consultant in the Prime Minister’s Economic Advisory Council. From February-June 2022, he was a Policy Leader Fellow at European University Institute in Florence, Italy. He previously worked as a senior research fellow at India Foundation, a premier think-tank in India.

 


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