| In pursuit of globalization, India has responded | | | | These are aimed at preventing unfair trade practices. |
| positively by opening up its economy, removing | | | | It is also framed with the intention of curbing abuse |
| controls and resorting to liberalization. In quest of | | | | of monopoly in the market by the dominant |
| increasing the efficiency of the nation's economy, the | | | | company. Consumer welfare and a healthy |
| Government of India acknowledged the Liberalization | | | | competition in the market are the main objectives of |
| Privatization Globalization era. As a result Indian | | | | the Competition Law. |
| market faces competition from within and outside | | | | On the other side IP Laws are monopolistic in nature. |
| the country. This lead to the need of a strong | | | | They guarantee an exclusive right to the creators |
| legislation to dispense justice in commercial matters | | | | and owners of work which are a result of human |
| and the Competition Act, 2002 was passed. | | | | intellectual creativity. Also they prevent commercial |
| Healthy and fair competition has proven to be an | | | | exploitation of the innovation by others. This legal |
| effective mechanism which enhances economic | | | | monopoly may, depending on the unavailability of |
| efficiency. Therefore the purpose of implementing | | | | substitutes in the relevant market, lead to market |
| the competition law was to curb monopolies and | | | | power and even monopoly as defined under |
| encourage competition in Indian market. Intellectual | | | | competition law.It is an advantage granted to the |
| property (IP) refers to creations of the mind: | | | | owner over the rest of the industry or sector. When |
| inventions, literary and artistic works, and symbols, | | | | this advantage or dominant position is abused it |
| names, images, and designs used in commerce1. | | | | creates a conflict between IPR and competition law. |
| An Intellectual Property Right (IPR) is, an intangible | | | | The provisions3 of the Competition Act, 2002 |
| right "protecting commercially valuable products of | | | | prohibits the exercise of anti-competitive agreements |
| the human intellect"; it may comprise patents, | | | | by the IPR holders since they are in conflict with the |
| copyrights, trademarks and other similar rights2. An | | | | competition policies. Further the Act authorizes4 the |
| IPR includes the right to exclude others from | | | | Competition Commission of India to penalise the IPR |
| exploiting the non-corporeal asset. | | | | holders who misuse their dominant position. |
| IP is divided into two categories: Industrial property, | | | | Furthermore, Section 45 of the Act the Commission |
| which includes inventions patents, trademarks, | | | | is also authorized to penalize the parties to an |
| industrial designs, and geographic indications of | | | | anti-competitive agreement, which is in contravention |
| source; and Copyright, which includes literary and | | | | of Section 3 of the Act. |
| artistic works such as novels, poems and plays, films, | | | | In order to combat with IPR monopolies |
| musical works, artistic works such as drawings, | | | | anti-competition laws often include two major |
| paintings, photographs and sculptures, and | | | | measures like parallel imports and compulsory licensing. |
| architectural designs. Rights related to copyright | | | | A compulsory license is where an IPR holder is |
| include those of performing artists in their | | | | authorized by the state to surrender his exclusive |
| performances, producers of phonograms in their | | | | right over the intellectual property, under the |
| recordings, and those of broadcasters in their radio | | | | provisions6 of TRIPS. On the other hand a parallel |
| and television programs. | | | | import includes goods which are brought into the |
| IPRs and competition are normally regarded as areas | | | | country without the authorization of the appropriate |
| with conflicting objectives. The reason is that IPRs, | | | | IP holder and are placed legitimately into a market. |
| by designating boundaries within which competitors | | | | Innovation has always been a cause in a growing |
| may exercise monopolies over their innovation, they | | | | economy resulting in more innovation. The advent of |
| appear to be against the principles of static market | | | | fresh innovations gives rise to healthy competition at |
| access and level playing fields sought by competition | | | | macro as well as micro economic levels. IP laws help |
| rules, in particular the restrictions on horizontal and | | | | protect these innovations from being exploited |
| vertical restraints, or on the abuse of dominant | | | | unlawfully. In view of this IP and Competition laws |
| positions. | | | | have to be applied in tandem to ensure that the |
| Intellectual Property Rights and Competition Law | | | | rights of all stake holders including the innovator and |
| have been described as an unhappy marriage. The | | | | the consumer or public in general are protected. |
| former may be seen to promote monopolies whilst | | | | The common objective of both policies is to promote |
| the latter is designed is oppose them. In other words, | | | | innovation which would eventually lead to the |
| on one hand, IP laws work towards creating | | | | economic development of a country however this |
| monopolistic rights whereas competition law battles it. | | | | should not be to the detriment of the common public. |
| In view of this there seems to be a conflict between | | | | For this the competition authorities need to ensure |
| the objectives of both laws. | | | | the co-existence of competition policy and IP laws |
| Competition laws involves in formulating a set of | | | | since a balance between both laws would result in an |
| policies which promote competition in the market. | | | | economic as well as consumer welfare. |