India’s Construction Market is expected to register a compound annual growth rate greater than 10% during 2022–2027. Even after the pandemic brought this industry to a standstill, in 2021 it started reviving when investments in the industrial and logistics sector exceeded USD 1.5 billion, making it the second-highest recipient of such funds after the office sector. These investments have aided in bringing about massive technological and managerial changes in industry standards. Innovations integrating cutting-edge procedures, resource management, research on construction technology, construction equipment, and robotics & automation are what propel this sector forward. Therefore, the protection and enforcement of intellectual property rights (IPR) have become essential for every real estate organization. Big projects usually have huge market value, reputation, and media promotions, but all this effort and expenses go in vain if the owner does not diligently protect its intellectual property.
Here is a broad overview of the various intellectual property rights and their nexus with the real estate industry:
|Brand name, name of project & exterior structure of the building (as discussed below)
|Architectural Copyright/ Designs
|Architectural plans, blueprints, BIM, and design documents including process protocols, adaptations, and elevations.
|Innovations in the field of mechanical engineering, civil engineering, heavy machines, instrumentation engineering, computer-aided designs, prefabrication of construction units, robotic total stations (RTS), sustainable building materials, cloud computing – data analytics, etc.
Firstly, the name of a real estate company often signifies its brand value in terms of the quality of construction. It is important to register the same as a trademark to avoid brand dilution. Secondly, the name of the project must be registered as a mark. Failure to take proactive steps to enforce said trademarks leads to a loss of the first mover advantage and exclusivity over the project name and the look and feel of the project leading to identity crises of the project. Thirdly, one can trademark the exterior design of the building itself since the element of graphical representation is fulfilled. For example, IHCL has trademarked the Taj Hotel building under Class 43 to protect the iconic value of the structure. Similarly, in 2018, the BSE obtained a trademark registration for its 28-storey Phiroze Jeejeebhoy Towers.
- ARCHITECTURAL COPYRIGHT
The Berne Convention came into force to safeguard creators’ rights to creative and literary works through a global law. India is one of the 177 current members of the pact. The Convention has added architecture to its list of ‘protected works’ over time.
In India, architectural designs and personalities are protected by copyright under Section 13 of the Copyright Act. This implies that while architectural designs, structures, and their drawings can be protected by copyright laws, the engineering and construction techniques used in the process cannot. In Raj Rewal v. Union of India, the court, for the first time, sympathized with the Architect in the demolition of buildings stating ‘the defendants Union of India… have erred in not so caring for the sentiment of and respecting the plaintiff and his work’, as analyzed here.
Furthermore, Section 57 of the Act grants moral rights to the architect (or creator) of the architectural design. As a result, the architect may claim ownership of the creation and guard against its being altered. The author has the right to ask for an injunction to prevent the violator from using the work. However, when the construction of the building or any other structure has already been finished, it is likely that an architect will not be eligible for such a remedy under Section 59 of the Act. The sole recourse in these situations may be to pursue a damages lawsuit or criminal charges against the infringers.
Architects can use the Copyright Registration System to register their original creations. Although it is not necessary for the authors to register the architectural designs in India, doing so is advised since it strengthens their defence in the event of any infringement.
Similar to the Copyright Act, the Designs Act, 2000 also includes Class 25-03 and 25-99 of the Designs Rules, 2001 which allow for the registration of any architectural work. As a result, there are instances when it may not be clear whether architectural works should be protected by the Designs Act 2000 or the Copyright Act 1957. The copyright protection for such a design under the Copyright Act would not be made accessible in such instances if the owner of the creative work applies for the registration of the design of the work under the Designs Act, 1911 or under the Designs Act, 2000 and vice-versa.
Patents essentially protect unique novel inventions. With construction firms employing new technologies and equipment, it becomes imperative for them to protect their inventions to retain that upper hand. A few examples of inventions in the construction field which have been applied for a patent in India are automatic construction devices (IN202211002180), method and process of economical building construction (IN202211000870), construction safety management systems based on artificial intelligence machine vision technology (IN202221000836).
- DOMAIN NAME
Construction companies should be attentive in purchasing domain names related to their trade names, brands, and project names since in this digital era, a company’s website serves as its primary window. It is important to choose broader combinations when registering domain names to stop competitors from using names that are substantially similar to mislead clients and steal the reputation of the company.
Currently, the real estate industry does not give due importance to creating and protecting IP. In case of theft of IP, that is infringement, even if it is minor, strict action must be taken to avoid future graver infringements. It is also important to keep an active watch so as to ensure catching any unauthorized use of your own IP and to understand the strength and weaknesses of the competitor’s IP. Lastly, it is imperative to give due emphasis to IP when drafting and signing any internal or external documents so as to maintain a stronghold on the brand name.