India’s unique solutions for IP compensation

Every law student is familiar with the Latin maxim “ubi jus ibi remidum”, which means that there is no right without a remedy. In fact, the strength of a legal system is dependent in a big way on the versatile remedies that its judges can fashion.

In the field of intellectual property (IP), until recently remedies were restricted to injunctions, damages and, in unusual cases, Anton Piller orders, Mareva Injunctions, John Doe orders, etc. Most of the unusual orders were not provided for, until recently, in the statute book, but were judge-made law. Late Judge Hugh Laddie in fact drafted the Anton Piller order when he was a lawyer.

PAYMENT OF DAMAGES

Damages were on the statute book but not granted due to one reason or another. From 2005, the courts started to grant damages, and over the next 11 years there were more than 240 cases where damages were granted – in some cases compensatory damages alone, in others punitive and exemplary damages as well.

The principles on which damages ought to be granted have been discussed in several cases and have evolved from case to case. Once in a while a defendant turns up having blatantly infringed the plaintiff’s IP, but is unable to pay damages, mainly due to financial constraints.

What is interesting is that when the courts recognize that the defendant has done something wrong, they generally tend to believe that the defendant must pay back, if not in money, in some other way. What have been these different ways to pay back? This article looks at a diverse range of remedies fashioned by Indian courts primarily to get a defendant to pay back.

PRAVIN ANAND is the managing partner of Anand and Anand, and RAUNAQ KAMATH is a managing