This article has been written by Swati K, pursuing the Diploma in Intellectual Property, Media and Entertainment Laws from LawSikho.

Introduction

Intellectual property is the property created by virtue of human intellect. It is intangible and is protected under the law across jurisdictions just like any tangible property would be. Any expression of an idea emerging from the intellect of a person renders it protection as an intellectual property. Such protection is granted against infringement of the exclusive rights granted to the owner of an intellectual property by law. 

The different types of intellectual properties include Trademarks, Patents, Copyrights, Geographical Indications, Designs etc. which are recognized and protected under the statues like the Trademarks Act, 1999, the Copyrights Act, 1957, Patents Act, 1950, Designs Act, 2000, Geographical Indications of Goods (Registration and Protection) Act, 1999 etc. 

Various criminal and civil remedies are available against the infringement of these IPs. This article shall discuss one such remedy available to the owners of the intellectual property known as injunctions, what they are and how protection is granted by virtue of them.

Injunctions

An injunction is a form of preventive relief grant of which depends on the discretion of the court. It is a prohibitive writ issued by a court of equity, at the suit of a party complainant, directed to a party defendant in the action or to a party made/a defendant for that purpose, forbidding the latter to do some act or to permit his servants or agents to do some act, which he is threatening or attempting to commit or restraining him in the continuance thereof, such act being unjust and inequitable, injurious to the plaintiff, and not such as can be adequately redressed by an action at law. 

Whenever any person who is not the owner of an intellectual property exploits such intellectual property without authorized permission from the owner, it amounts to IP infringement and the owner can seek an Injunction against such a person. An injunction restrains, prevents or orders the performance of an Act by such an infringer. 

Statutory Recognition

Injunctions are backed by different statues in India and relief is hence statutorily recognized. Both civil and criminal law forward the remedy in the form of injunctions to people. 

1. CRIMINAL PROCEDURE CODE, 1973-  In criminal proceedings, Section 133, 142 and 144 of the CrPC deals with the procedures in respect of injunctions.
2. CIVIL PROCEDURE CODE, 1908- In civil proceedings, Order XXXIX from Rules 1 to 5 of the CPC provides provisions with respect to injunctions.
3. SPECIFIC RELIEF ACT, 1963- Chapters VII and VIII of the Specific Relief Act in Section 36 to 42 provide about Injunctions in civil proceedings. 

Chapter 7 and 8 of the Specific Relief Act and above-mentioned provisions of CPC are read together for granting Injunctions as a remedy in civil proceedings. 

Kinds Of Injunctions

Injunctions mainly are of two kinds according to Section 36 and 37 of the Specific Relief Act, 1963: temporary or interim and perpetual or permanent.

1. Temporary/ Interim Injunction– It is granted for a specific time at any stage of the suit and upon completion of such specific time period it becomes dead.
2. Permanent/Perpetual Injunction– It is granted by the decree made at the hearing and upon the merits of the suit. The infringer/ defendant is thereby perpetually prevented from the assertion of a right, or from the commission of an act, which would be contrary to the rights of the plaintiff/ IP owner.
3. Mandatory Injunction- It is granted when there is a need for performance of an act to prevent the breach or infringement which is likely to be caused. (Sec- 39 of Specific Relief Act, 1963).
4. Prohibitory Injunction- It is granted to restrain or prohibit the continuance of a wrongful act which amounts to infringement. 

Injunctions In IP

In case of intellectual property infringements or possible future infringements the owner of intellectual property generally has the following options to pursue:

1. apply for an interim injunction (during the pendency of suit to protect its interests).
2. apply for a perpetual injunction in case the infringement has already commenced (granted after completion of trial).
3. sue the infringer for damages (relief is granted only after completion of trial).

Article 50 of TRIP also provides for temporary injunctions and ex-parte injunctions to prevent the infringement of intellectual property rights. Following injunctions are and have been granted in different scenarios of intellectual property infringements in India:

Temporary and Perpetual Injunctions

As already stated above, the IP owner can apply for these injunctions when there is an anticipation of infringement or the infringement has already commenced. In an application for an interim or temporary injunction the court shall keep in mind the following requirements:

1. prima facie case;
2. whether the plaintiff can establish a balance of convenience in its favor; and

iii. whether irreparable loss may be caused to the plaintiff if the court does not grant an order of interim injunction.

A prima facie case requires a showing of a bona fide contention between the parties or a serious question to be tried.

Mandatory and Prohibitory Injunctions

As mentioned above, these injunctions are also granted in cases of IP infringement. A mandatory injunction is granted only in exceptional cases. Generally, a mandatory injunction is granted only to restore the status quo and not to establish a new state of affairs differing from that which existed when the suit was instituted. In in D.C.Warden v C.S.Warden (1990 (2) SCC 117), the Supreme Court held that the plaintiff should establish a strong case for trial to obtain a mandatory injunction; a standard higher than the normal prima facie case standard required for grant of a prohibitory injunction.

Quia Timet Injunctions

These Injunctions are granted in cases where the Infringement of the Intellectual property has not yet occurred but there is a strong possibility for its occurrence. The applicant has to show reasonable apprehension that the illegality is on the verge of occurring, and will most certainly happen unless there is intervention by the Court, by way of granting an order of injunction. 

In the Case of Super Cassette Industries Ltd. v Myspace Inc. (MIPR 2011 (2) 303) the contention made was that Quia Timet Injunctions shall only confine to Copyright Infringements and not extend to Trademark Infringements, the Court held that the principle of Quia Timet is applicable to any tortious liability wherever there is an apprehension of infringement that is likely to happen. 

The Court shall make sure that following two conditions are satisfied when granting Quia Timet Injunction to the IP owner:

1. proof of imminent danger even if there is no actual damage.
2. proof that the apprehended damage whenever occurs would be huge and substantial.

Mareva Injunctions

Mareva injunctions are restraint orders “freezing” the assets of the defendant, and can be issued even if the property or the person concerned is outside the jurisdiction of the court. [5] These Injunctions are popularly known as so from the popular case of Mareva Compania Naviera SA v International Bulkcarriers SA ([1975] 2 Lloyd’s Rep 509: [1980] 1 All E.R. 213). Mareva Injunction conserves the assets of the Infringer so that they are useful in case of paying damages to the IP Owner post judgment. It is granted in exceptional cases and there must be evidence or material to show that the debtor is acting in a manner, or is likely to act in a manner, that frustrates enforcement of any subsequent order/decree of the court or tribunal.

Ex-Parte Injunctions

Ex- parte Injunctions are granted only in exceptional cases. In Morgan Stanley Mutual Fund v Kartick Das ((1994) 4 SCC 225) the Supreme Court listed out certain factors which the Court shall consider when granting ex-parte Injunctions. They are as follows:

(a) whether irreparable or serious mischief will ensure to the plaintiff;

(b) whether the refusal of ex parte injunction would involve greater injustice than the grant of it would involve;

(c) the time at which the plaintiff first had notice of the act complained so that the making of an improper order against a party in his absence is prevented;

(d) whether the plaintiff had acquiesced for some time with the defendant’s conduct, in which case it shall not grant an ex parte injunction;

(e) the court would expect a party applying for ex parte injunction to show utmost good faith in making the application;

(f) even if granted, the ex parte injunction would be for a limited period of time;

(g) general principles like prima facie case, the balance of convenience and irreparable loss would also be considered by the court.

Enforcement

Rule 2-A of Order XXXIX of CPC, 1908 provides the procedure in case of disobedience of Interim Injunctions in particular. According to it, the Plaintiff can directly approach the same court which had granted it the Injunction and seek the attachment of the property of the person who has disobeyed the order. This rule does not apply to the Permanent Injunctions and the final decree passed by the Court at the end of the trial. 

Conclusion

Injunctions are one of the most favoured, most popular and widely sought remedies for Intellectual Property Rights Infringement. Since IP Rights are time-bound monopoly rights, Injunctions of different kinds make it possible for the owner to exploit them exclusively.

References

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