Cross-Border IP Enforcement: Challenges for Indian Companies Going Global

The horizon of the Indian innovator and brand is increasingly becoming global, yet intellectual property (IP) protection remains inherently territorial. Enforcement across jurisdictions continues to be a protracted and fragmented process. This article explores the legal framework, judicial principles, and challenges faced by Indian companies seeking to protect their patents, trademarks, copyrights, designs, trade secrets, and domain names abroad.

Legal Framework Governing Cross-Border IP
At the core of IP enforcement lies the principle of territoriality. In Jolen Inc. v. Shoban Lal Jain (2010), the Delhi High Court categorically held that foreign goodwill alone does not create enforceable rights in India, reinforcing that IP rights derive from statutory recognition under domestic law. Conversely, when Indian companies venture abroad, their reputation within India cannot automatically be invoked for protection elsewhere.

International instruments, such as the TRIPS Agreement, the Patent Cooperation Treaty (PCT), and the Madrid Protocol, create procedural avenues but stop short of conferring substantive rights. Similarly, the Uniform Domain Name Dispute Resolution Policy (UDRP) provides a harmonised mechanism for domain disputes but operates within a limited framework. Ultimately, enforceability remains embedded in the domestic laws and institutions of each jurisdiction.

Judicial Reflections on Enforcement Challenges

The complexity of cross-border enforcement is illuminated by several judicial pronouncements:

• Jurisdictional Barriers: In Banyan Tree Holding v. A. Murali Krishna Reddy (2009), the Delhi High Court clarified that mere accessibility of a website in India was insufficient to confer jurisdiction. The Court required evidence of purposeful targeting of Indian consumers. This precedent underscores the difficulty Indian entities face abroad, where courts adopt a similar conservative approach in determining jurisdiction over online infringements.
• Territoriality and Recognition of Rights: The refusal to extend domestic goodwill across borders, as seen in Jolen Inc., highlights the fragmented nature of protection. Indian companies cannot rely solely on their reputation at home; filings in each jurisdiction are a precondition to enforceability.
• Evidentiary Complexities: In Microsoft Corp. v. K. Mayuri (2007), the Delhi High Court emphasised the role of digital evidence in piracy disputes. Cross-border cases multiply this challenge, as access to infringing material hosted abroad often necessitates time-consuming letters rogatory or cooperation under mutual legal assistance treaties.
• Costs and Procedural Delays: The Supreme Court’s decision in Novartis AG v. Union of India (2013), clarified the limits of patentability under Section 3(d) of the Patents Act, particularly in relation to pharmaceutical inventions. While this case was centered on substantive standards rather than enforcement, it nevertheless underscored the time, cost, and evidentiary burdens associated with high-stakes IP litigation in India. For Indian companies seeking to enforce rights abroad, these demands are magnified across multiple jurisdictions, making strategic filings and resource planning critical.

Together, these cases illustrate that Indian companies face not merely commercial hurdles but deep-rooted legal complexities in asserting their rights abroad.

Towards a Strategic Enforcement Framework

Rather than practical prescriptions, what emerges from judicial reasoning is a legal architecture that Indian businesses must align with:

• Doctrinal Primacy of Territoriality: IP protection cannot transcend borders without statutory recognition. Any assertion of rights must therefore begin with local registrations in the target jurisdiction.
• Customs and Border Jurisprudence: Jurisdictions such as the EU, US, and China treat customs authorities as quasi-judicial enforcers of IP. Indian jurisprudence, while evolving, recognises the preventive role of border measures under the Intellectual Property Rights (Imported Goods) Enforcement Rules, 2007. Companies expanding abroad must engage with foreign customs systems for effective enforcement.
• Platform and Intermediary Liability: In Shreya Singhal v. Union of India (2015) the striking down of Section 66A of the IT Act reshaped the regime of intermediary liability in India. Although not directly an IP case, the judgment clarified that online intermediaries are not under an open-ended duty to police content and enjoy conditional safe-harbour. This principle has spillover relevance for IP enforcement, since takedowns of infringing material depend on notice-and-action procedures. Globally, however, intermediary obligations differ widely across platforms and jurisdictions, creating uneven enforcement outcomes for Indian companies.
• Contractual Enforcement as a Legal Device: Strong indemnity and jurisdiction clauses in contracts are increasingly recognised by courts as critical tools in cross-border disputes. These provisions function not merely as commercial terms but as enforceable legal safeguards. In Modi Entertainment Network v. WSG Cricket Pte Ltd. (2003) Supreme Court upheld the enforceability of contractual jurisdiction clauses and anti-suit injunctions in international commercial disputes. For disputes involving arbitration, party autonomy and tribunal competence have likewise been upheld by the Supreme Court in TransTyres India Pvt. Ltd. v. Daelim Industrial Co. Ltd. (2021).

Conclusion

Cross-border IP enforcement remains shaped by the doctrine of territoriality. Indian case law illustrates recurring hurdles of recognition, jurisdiction, evidence, and delay. For Indian companies going global, IP protection cannot rest on domestic goodwill alone; it requires embedding international ambitions within the legal frameworks of target jurisdiction. Anticipating risks through legal strategy rather than reacting commercially is the most effective way to safeguard innovation.