Intellectual Property II and IT Law: Trade Marks, Geographical Indications, Biodiversity and Traditional Knowledge, the Information Technology Act 2000, Cyber Crimes and Adjudication, and the Digital Personal Data Protection Act 2023

This chapter takes Unit IX's items 6 to 10: the law of trade marks, the protection of geographical indications, biodiversity and traditional knowledge, information technology law (digital and electronic signatures, electronic governance, electronic records and the duties of subscribers), and cyber crimes, penalties and adjudication. The IT statute is the Information Technology Act 2000, as amended in 2008; its most tested provision, section 66A, was struck down in Shreya Singhal v Union of India (2015). Personal data is now governed by the Digital Personal Data Protection Act 2023, which also removed section 43A of the IT Act. Trade marks and IT law are touched on in NET Commerce; here they are treated through their sections, cases and remedies.

1. The law of trade marks

A trade mark (section 2(1)(zb) of the Trade Marks Act 1999) is a mark capable of being represented graphically and of distinguishing the goods or services of one person from those of others, and may include the shape of goods, their packaging and combinations of colours. The Act recognises marks for goods and services, collective marks, certification marks and well-known marks, and non-conventional marks such as sound marks have been registered. Registration may be refused on absolute grounds (section 9: marks devoid of distinctive character, descriptive or generic marks, deceptive or scandalous marks, and shapes resulting from the nature of the goods) or relative grounds (section 11: conflict with an earlier identical or similar mark, or with a well-known mark). Registration lasts ten years and may be renewed indefinitely for further periods of ten years (section 25).

Enforcing trade marks
Remedy or doctrineRuleAuthority
InfringementAvailable only for a registered mark (section 29), where an identical or deceptively similar mark is used in the course of trade; an unregistered mark cannot be sued on for infringement (section 27(1))Deceptive similarity is judged from the view of a person of average intelligence and imperfect recollection (Amritdhara Pharmacy v Satya Deo Gupta, 1963); a stricter standard applies to medicinal products (Cadila Health Care v Cadila Pharmaceuticals, 2001)
Passing offA common-law action preserved by section 27(2), available for registered and unregistered marks; its elements are goodwill, misrepresentation likely to deceive, and damageReckitt & Colman v Borden (1990), the "classical trinity"
Well-known marks and transborder reputationA well-known mark is protected across classes of goods; a foreign mark's reputation can be protected in India, but the claimant must show goodwill in the Indian marketDaimler Benz v Hybo Hindustan (Delhi High Court, 1994); N.R. Dongre v Whirlpool (1996); Toyota Jidosha Kabushiki Kaisha v Prius Auto Industries (2017)
RemediesInjunction, damages or an account of profits, and delivery up (section 135); falsifying marks and selling goods with false marks are offences (sections 103 and 104)Remedies apply to infringement and passing off alike
🧠 Infringement is statutory, passing off is common law
If the mark is registered, the owner can sue for infringement and need not prove confusion in the marketplace to the same degree, because the statute protects the registered right. If it is unregistered, only passing off is available, and the owner must prove goodwill, misrepresentation and damage. Plaintiffs with registered marks commonly plead both.

2. Geographical indications; biodiversity and traditional knowledge

A geographical indication identifies goods (agricultural, natural or manufactured, including handicrafts and foodstuffs) as originating in a territory where a given quality, reputation or other characteristic is essentially attributable to that origin. The Geographical Indications of Goods (Registration and Protection) Act 1999 came into force on 15 September 2003; the Registry is at Chennai, and Darjeeling tea was the first GI registered, in 2004. Registration lasts ten years and is renewable. It is held by an association or organisation representing producers, and producers are registered as authorised users; a GI cannot be assigned or licensed. TRIPS (Articles 22 to 24) requires protection against misleading use and gives wines and spirits additional protection (Article 23).

Biodiversity and traditional knowledge
InstrumentContent
Convention on Biological Diversity (1992)Three objectives: conservation of biological diversity, sustainable use of its components, and fair and equitable sharing of the benefits of genetic resources; recognises States' sovereign rights over their biological resources
Nagoya Protocol (2010, in force 2014)Access to genetic resources and benefit-sharing, including prior informed consent and mutually agreed terms
Biological Diversity Act 2002A three-tier structure: the National Biodiversity Authority at Chennai, State Biodiversity Boards, and Biodiversity Management Committees in local bodies, which maintain People's Biodiversity Registers; foreign access and intellectual property based on Indian biological resources require the National Authority's approval. The 2023 amendment eased requirements for codified traditional knowledge and practitioners of Indian systems of medicine and replaced several offences with penalties
Protection of Plant Varieties and Farmers' Rights Act 2001A sui generis system under TRIPS Article 27(3)(b), protecting breeders and recognising farmers' rights to save, use, exchange and sell farm-saved seed
ℹ️ Defensive protection of traditional knowledge
India challenged a United States patent on the wound-healing use of turmeric, revoked in 1997 because the use was documented in ancient texts, and patents relating to neem in Europe. The Traditional Knowledge Digital Library, set up by the CSIR in 2001, makes documented knowledge available to patent examiners as prior art, and section 3(p) of the Patents Act excludes traditional knowledge from patentability. In 2024 WIPO members adopted a treaty on intellectual property, genetic resources and associated traditional knowledge that requires patent applicants to disclose the origin of such resources.

3. The Information Technology Act 2000: signatures, records, e-governance and subscribers

The Information Technology Act 2000, in force from 17 October 2000, was based on the UNCITRAL Model Law on Electronic Commerce (1996). It gives legal recognition to electronic records (section 4) and electronic signatures (section 5), and allows their use in government filings, the issue of licences and receipts of payment (section 6: electronic governance). Section 3 provides for authentication of an electronic record by a digital signature, created by an asymmetric crypto system and hash function: a key pair in which a private key signs and a public key verifies. The Information Technology (Amendment) Act 2008 made the law technology-neutral by adding the wider category of electronic signatures (section 3A), such as other reliable techniques notified in the Second Schedule. The Act does not apply to documents in its First Schedule, among them negotiable instruments other than cheques, powers of attorney, trusts, wills and contracts for the sale or conveyance of immovable property.

Signatures, certification and subscribers
ProvisionContent
Controller of Certifying Authorities (section 17)Licenses and supervises Certifying Authorities, which issue Electronic Signature Certificates (section 35)
Attribution, acknowledgement, despatch and receipt (sections 11 to 13)Rules on when an electronic record is attributed to its originator and on the time and place of its despatch and receipt
Duties of subscribers (sections 40 to 42)Generate the key pair by a specified security procedure (s.40); perform duties in respect of the Electronic Signature Certificate (s.40A); on accepting a certificate, certify that the information in it is true (s.41); exercise reasonable care to retain control of the private key and, if it is compromised, communicate that to the Certifying Authority without delay (s.42)
Electronic evidenceElectronic records are admissible under the Bharatiya Sakshya Adhiniyam, 2023, with a certificate under section 63 (formerly section 65B of the Evidence Act)
⚠️ Digital signature versus electronic signature
Every digital signature is an electronic signature, but not the reverse. "Digital signature" in the Act means the specific asymmetric-key technique of section 3; "electronic signature" is the technology-neutral category added in 2008, which includes the digital signature and other notified techniques such as Aadhaar-based e-signatures.

4. Cyber crimes, penalties and adjudication

Penalties and offences under the IT Act
ProvisionWrongConsequence
Section 43Unauthorised access, downloading, introducing viruses, damage or disruption to a computer system, and similar actsCivil liability to pay compensation; claims up to ₹5 crore are decided by an adjudicating officer (section 46) and larger claims by the competent court
Section 65Tampering with computer source documentsUp to three years, or fine up to ₹2 lakh, or both
Section 66Doing any act in section 43 dishonestly or fraudulentlyUp to three years, or fine up to ₹5 lakh, or both
Sections 66C, 66D and 66EIdentity theft; cheating by personation using a computer resource; violation of privacy by capturing or transmitting images of a person's private area without consentImprisonment and fine
Section 66FCyber terrorismImprisonment for life
Sections 67, 67A and 67BPublishing or transmitting obscene material, sexually explicit material, and material depicting children in sexually explicit actsGraded imprisonment and fine
Section 69A and section 79Government power to block public access to information on specified grounds; safe harbour for intermediaries that observe due diligenceBoth upheld in Shreya Singhal (2015), with section 79's "actual knowledge" read as knowledge through a court order or government notification

In Shreya Singhal v Union of India (24 March 2015) the Supreme Court struck down section 66A, which had punished sending "grossly offensive" or "menacing" information, or information known to be false for the purpose of causing "annoyance" or "inconvenience", by means of a computer resource. The Court held it vague and overbroad, not saved by any head of Article 19(2), and productive of a chilling effect on speech; it distinguished discussion and advocacy, which are protected, from incitement, which may be restricted. Appeals from an adjudicating officer lie to the Telecom Disputes Settlement and Appellate Tribunal, which took over the Cyber Appellate Tribunal's functions in 2017, and from it to the High Court within sixty days (section 62). Intermediaries are now also governed by the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021.

🎯 Why section 66A failed the test
Article 19(2) permits restrictions on speech only on listed grounds, such as public order, defamation and incitement to an offence. Words like "annoyance" and "inconvenience" have no fixed meaning and reach speech that causes no harm to any of those interests, so the section could not be read down; it had to go. Offences committed through computers remain punishable under the BNS and under other sections of the IT Act.

5. The Digital Personal Data Protection Act 2023

After Justice K.S. Puttaswamy v Union of India (2017) recognised privacy as a fundamental right, and the Justice B.N. Srikrishna Committee reported in 2018, Parliament enacted the Digital Personal Data Protection Act 2023, which received assent on 11 August 2023; its operative provisions take effect on dates notified by the Central Government. It applies to the processing of digital personal data in India, and to processing outside India in connection with offering goods or services to data principals in India. Personal data may be processed only for a lawful purpose, on the data principal's consent or for certain legitimate uses (section 7). Consent must be free, specific, informed, unconditional and unambiguous, given by a clear affirmative action, and preceded by a notice (sections 5 and 6); it may be withdrawn, and consent managers may be used.

The scheme of the 2023 Act
FeatureRule
Duties of a data fiduciaryEnsure accuracy, take reasonable security safeguards, notify the Data Protection Board and each affected data principal of a personal data breach, and erase data when the purpose is served (section 8)
Children's dataA child is a person under eighteen; verifiable consent of a parent is required, and tracking, behavioural monitoring and targeted advertising directed at children are prohibited (section 9)
Significant data fiduciariesThose notified on the basis of volume, sensitivity and risk must appoint a Data Protection Officer in India and an independent data auditor and carry out impact assessments (section 10)
Rights and duties of the data principalRights to information about processing, correction and erasure, grievance redressal and to nominate another person (sections 11 to 14); duties not to impersonate, suppress material information or file frivolous complaints (section 15)
Transfers, exemptions and enforcementTransfers abroad are allowed except to countries the Central Government restricts by notification (section 16); the Government may exempt its instrumentalities on grounds such as sovereignty, security and public order (section 17); the Data Protection Board of India adjudicates, with penalties of up to ₹250 crore per instance, and appeals lie to the Telecom Disputes Settlement and Appellate Tribunal
ℹ️ Consequential amendments
The Act omitted section 43A of the IT Act, which had required a body corporate to pay compensation for negligence in protecting sensitive personal data, and amended section 8(1)(j) of the Right to Information Act 2005 so that personal information is exempt from disclosure without the earlier public-interest override. Both changes are examined as consequences of the new regime.

Key takeaways

  • Trade Marks Act 1999: refusal on absolute (s.9) and relative (s.11) grounds; ten-year renewable registration (s.25); infringement only for registered marks (s.29), passing off preserved (s.27(2)); Cadila (2001) sets a stricter standard for medicines.
  • GI Act 1999, in force 15 September 2003; Darjeeling tea was the first GI (2004); TRIPS Article 23 gives wines and spirits extra protection; the Biological Diversity Act 2002 (amended 2023) has a three-tier structure under the CBD (1992) and Nagoya Protocol (2010).
  • IT Act 2000 (UNCITRAL Model Law 1996): electronic records (s.4), electronic signatures (s.5), e-governance (s.6), digital signatures by asymmetric crypto (s.3), subscribers' duties (ss.40–42).
  • Section 43 is civil compensation adjudicated under s.46 (up to ₹5 crore); ss.65–67B are offences, 66F cyber terrorism carrying life; Shreya Singhal (2015) struck down s.66A and upheld ss.69A and 79.
  • DPDP Act 2023 (assent 11 August 2023): consent and legitimate uses, fiduciary duties, children under eighteen protected, the Data Protection Board with penalties up to ₹250 crore; it omitted IT Act s.43A and amended RTI s.8(1)(j).

Practice questions (10)

Attempt each one before opening the answer. Every explanation names the tempting wrong option as well as the right one, because that is where marks are lost.

  1. Which provision of the Information Technology Act 2000 was struck down in Shreya Singhal v Union of India (2015)?

    1. Section 69A
    2. Section 43
    3. Section 66A
    4. Section 79
    Show answer

    Answer: C — Section 66A

    Section 66A was struck down as vague and overbroad. Section 69A (blocking) was upheld with its safeguards, section 79 (intermediary safe harbour) was read down, and section 43 (civil compensation) was not in issue.

  2. Under the Trade Marks Act 1999, an action for infringement is available:

    1. For both registered and unregistered marks
    2. Only in respect of a registered trade mark
    3. Only against foreign traders
    4. Only for well-known marks
    Show answer

    Answer: B — Only in respect of a registered trade mark

    Section 27(1) bars an infringement action for an unregistered mark; the owner of an unregistered mark relies on passing off, which section 27(2) preserves. Well-known marks may be registered or unregistered, and nationality is irrelevant.

  3. Assertion (A): Every electronic signature under the IT Act is a digital signature. Reason (R): The 2008 amendment introduced "electronic signature" as a technology-neutral category that includes the digital signature and other notified techniques. Choose the correct option.

    1. Both A and R are true, and R is the correct explanation of A
    2. Both A and R are true, but R is not the correct explanation of A
    3. A is true, but R is false
    4. A is false, but R is true
    Show answer

    Answer: D — A is false, but R is true

    A is false and R is true. The relation runs the other way: the digital signature of section 3 is one species of the wider electronic signature, so every digital signature is an electronic signature, but an electronic signature made by another notified technique, such as an Aadhaar-based e-signature, is not a digital signature.

  4. The first product registered as a geographical indication in India was:

    1. Darjeeling tea
    2. Mysore silk
    3. Alphonso mango
    4. Basmati rice
    Show answer

    Answer: A — Darjeeling tea

    Darjeeling tea was registered in 2004, shortly after the GI Act came into force on 15 September 2003. The other products are well-known Indian GIs registered later; basmati has been the subject of long disputes abroad.

  5. Which of the following are duties of a subscriber under sections 40 to 42 of the IT Act? Select all that apply.

    1. Publishing the private key so that others can verify the signature
    2. Informing the Certifying Authority without delay if the private key is compromised
    3. Generating the key pair by applying the specified security procedure
    4. Exercising reasonable care to retain control of the private key
    Show answer

    Answer: B — Informing the Certifying Authority without delay if the private key is compromised; C — Generating the key pair by applying the specified security procedure; D — Exercising reasonable care to retain control of the private key

    Sections 40 and 42 impose the first three duties. Verification uses the public key, which is published; the private key must be kept secret, and publishing it would defeat the security of the signature.

  6. Under section 46 of the IT Act, an adjudicating officer decides claims for compensation where the claim does not exceed:

    1. ₹250 crore
    2. ₹1 crore
    3. ₹50 lakh
    4. ₹5 crore
    Show answer

    Answer: D — ₹5 crore

    Since the 2008 amendment, the adjudicating officer handles claims up to ₹5 crore and larger claims go to the competent court. ₹250 crore is the maximum penalty per instance under the DPDP Act 2023, a different statute.

  7. Which of the following are features of the Digital Personal Data Protection Act 2023? Select all that apply.

    1. It inserted section 43A into the IT Act
    2. A child is defined as a person below eighteen years
    3. A Data Protection Board of India adjudicates breaches
    4. Transfers abroad are prohibited except to countries on an approved list
    Show answer

    Answer: B — A child is defined as a person below eighteen years; C — A Data Protection Board of India adjudicates breaches

    The Act defines a child as under eighteen and creates the Data Protection Board. It omitted, not inserted, section 43A of the IT Act, and it allows transfers abroad except to countries the Central Government restricts by notification, a negative-list approach.

  8. Assertion (A): In a passing-off action, the plaintiff must prove goodwill, misrepresentation and damage. Reason (R): Passing off protects the goodwill of a business against misrepresentation, whether or not the mark is registered. Choose the correct option.

    1. Both A and R are true, and R is the correct explanation of A
    2. Both A and R are true, but R is not the correct explanation of A
    3. A is true, but R is false
    4. A is false, but R is true
    Show answer

    Answer: B — Both A and R are true, but R is not the correct explanation of A

    Both are true, but R does not explain A. R states what the action protects and that registration is irrelevant; A states the elements of proof, which come from Reckitt & Colman v Borden (1990). The requirement of damage is not explained by the fact that registration is irrelevant.

  9. Which section of the IT Act punishes cyber terrorism with imprisonment for life?

    1. Section 66F
    2. Section 67B
    3. Section 66C
    4. Section 65
    Show answer

    Answer: A — Section 66F

    Section 66F, added in 2008, punishes cyber terrorism with imprisonment for life. Section 66C is identity theft, section 67B concerns child sexual abuse material, and section 65 tampering with source documents.

  10. For how many years is the registration of a trade mark valid before renewal under the Trade Marks Act 1999? Type the number.

    Numerical answer — type the value.

    Show answer

    Answer: 10

    Section 25 makes registration valid for ten years, renewable for further periods of ten years each without limit; unlike patents and copyright, a trade mark can therefore last indefinitely while it is used and renewed.