Due Diligence Threads In Indian IP Laws

Rahul Dutta
Intellectual Property Lab, Patent and IP Attorney, Lucknow, India

Ignorance of the law is not an excuse. This [in]famous saying has a lot to offer regarding ignorance in a world where the laws are territorial, but the business is across the territorial limits. The knowledge of the laws of a territory is increasingly becoming important before entering into the foreign waters. In fact such legal inputs have become an integral part of business strategy. Since it is done prior to actually triggering the business activities, the entire process has been rightly named due diligence. Intellectual property (IP) has emerged as front runner in the due diligence process because working on the IP due diligence can start at the same time as the development of the business strategy. However, it would not be right to give a notion that due diligence or IP due diligence is required only in cross-border situations. It is just like putting a step forward, only after making sure that you’re not going to stand on someone else’s tail.

Any business starts with formation of a legal entity and for the same there are now four options in India, i.e., proprietorship firm, partnership firm, limited liability partnership (LLP), and company. The LLP is the latest addition. The formation of a legal entity starts with giving a name to the entity. Here come trademark issues. There are provisions in the respective laws that no two entities with the same name for the same objective should be created. The LLP Act has a provision for both reserving a name for LLP and rejecting the registered name for a LLP if someone else has filed a trademark application for another partnership firm or LLP or a registered corporate or a registered trademark. Therefore, the due diligence starts from the time of deciding on the name of an entity and continues in the brand names umbrella formation with the product and service names. In the Copyright Act there are a few provisions


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