BE ACTIVE NOT PASSIVE

In the present era of latest technologies and fast developments, intellectual property has assumed the status of lifeblood for most of the businesses across the globe. Intellectual property carries with the right to be the sole benefactor of one’s innovations and hard work and therefore patents, trademarks, and copyrights make the businesses especially the companies running such ventures unique. Intellectual Property Rights (IPR) are meant to act as shield against those who would seek to leverage others’ intellectual property for their own gain. However, the execution of that protective shield could be exceptionally complex as just owning the legal right is not enough to prevent infringement. Therefore it becomes quite necessary for the Intellectual Property holders to display extraordinary vigilance of the optimum level to safeguard their rights and benefit fully from these rights. It is pertinent to mention here that the need for utmost vigilance is inevitable especially in view of the fact that intellectual property law recognizes the concept of acquiescence, which requires that the affected party takes prompt legal action on discovering infringed of rights by someone. Acquiescence implies one’s passive consent to allow another person to use one’s registered right despite knowing that someone else is using it. So, once this ‘passive consent’ is not challenged within a statutory limit, the affected party loses the opportunity to sue the other party for infringement. Moreover, if the affected party is prompt in initiating legal action against the culprit, then the effected business concern must be handsomely compensated besides inflicting high penalty on the violator. It would not be out of context to mention here that the judiciary in India has always acknowledged the fact that that a mere procrastination by the owner of an intellectual property in filing a suit against its unauthorized use by the other user does not indicate the owner’s acquiescence in the use of his said property by the other user. In case of infringement like that of a registered trade mark, the owner of the trade mark can not only prevent the unauthorized use of his trade mark by the remedy of injunction against the other user, but can also enforce the right to oppose the registration of his trade mark by the other user under the concerned law. But the owner of a trade mark is not entitled to claim the benefit of these remedies if he deliberately fails to take action against the aforesaid unauthorized use and by his inaction. Such inaction by the owner will amount to implied consent of the owner to the use of his right by the other user. However, law has laid down appropriate safeguards despite acquiescence by the registered owner. It is an established rule of law that the infringing user can take the benefit of the defense of ‘acquiescence’ against the owner of the right only after establishing before the court four conditions i.e. ignorance of the other user about the owner’s right to title of the intellectual property; knowledge of the owner of that intellectual property that the other user is using it; no objection from the owner of the intellectual property despite being aware of its unauthorized use by the other user, and last but not the least, the other user having used it over a period of time. While these pre-requisites have been statutorily established under law, equity demands vigilance on the part of Intellectual Property right holders. At the same time those who knowingly or unknowingly indulge in using others’ registered right are also supposed to remain updated about the already registered IP rights besides refraining from intentionally using others’ rights. Such violators need to realize that legal action brought against them will make them to pay through nose besides draining their investments on such activity. Both the Intellectual Property Right owners as well as the violators need to realize that dispelling acquiescence and shunning infringement is in the ultimate interest of both as well as that of the society at large. For this the IPR holders will have to be active and not passive.