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 Trade Secrets

The United States continues to note its concern regarding trade secret protection in India, particularly the reported difficulty in obtaining remedies and damages. India appears to rely primarily upon contract law to provide trade secret protection. Although India's approach may address the theft of trade secrets where a contract has been breached, India's approach may be less effective in covering situations in which there is no contractual relationship, such as in cases of theft by a business competitor. Although Indian law does provide for some remedies, including injunctive relief, in practice, damages can be very difficult to obtain. Finally, because India's court system reportedly lacks sufficient procedural safeguards to protect trade secrets or other confidential information divulged through discovery in civil or criminal litigation, there is a risk that such information may be disclosed publicly in the course of judicial proceedings, deterring victims of trade secret theft from using the court system to enforce their rights. The United States notes positive statements in the First Draft of India's National IPR Policy that seek to address gaps in its legal framework with respect to adequately protecting trade secrets in India, and the United States welcomes the opportunity to work closely with India on this issue.

Trademarks and Counterfeiting

The United States continues to receive stakeholder complaints regarding significant delays associated with cancellation and opposition proceedings at the administrative level of the Trademark Registry. Trademark owners' ability to enforce their rights against subsequent applicants for, or users of, potentially-infringing marks is hindered further by delays in India's judicial processes.

In addition, the level of production, sale, distribution, importation, and exportation of counterfeit goods affecting India's market remains very troubling. (See Section I). The First Draft of India's National IPR Policy notes that the Government of India should have an interest in strongly combating copyright piracy and trademark counterfeiting, as these illicit activities harm consumers and legitimate producers in India. As described in Section I of this Report, U.S. consumers may be harmed by fraudulent and potentially dangerous counterfeit products, particularly medicines, originating in India. Producers face the risk of diminished profits and loss of reputation when consumers purchase fake products, and governments lose tax revenue and find it more difficult to attract investment. Infringers generally pay no taxes or duties and often disregard basic standards for worker health and safety and product quality and performance.

U.S. enforcement authorities continue to express concerns about counterfeit and pirated goods produced in India and shipped to the United States. Some of these products (e.g., counterfeit pharmaceuticals) pose serious risks to American consumers. The United States welcomes opportunities for enhanced bilateral engagement with India on IPR-related border enforcement issues. Such cooperation could include sharing best practices, customs-to-customs information exchange for use in risk management and enforcement actions, and conducting joint customs 51