INTRODUCTING IPR IN THE COSMETICS INDUSTRY AND ITS LEGALITY
Author: – Siri K Reddy
College:- St Joseph’s College of Law
Introduction
The cosmetics market has grown in India at a very steady pace with thousands of people making a purchase from the industry every single day. India’s market for cosmetics is expanding quickly. The desire to look better and more attractive, increased purchasing power due to higher incomes, the growing influence of western culture, and other factors have all contributed to the growth in demand for cosmetics products, especially in urban areas. Another sector that requires stringent laws is the cosmetics industry. The reason for this could be several factors like the influence of the western culture, the Instagram addiction or the desire to look attractive etc. There are numerous trustworthy brands in the market that use different chemicals to make their product and hence it is very crucial to make sure it is consumer safe! The cosmetic industries have also become very cautious in their process of making the product to marketing it due to the increase in awareness regarding animal cruelty.
Cosmetic Regulation in India
For years, the Drugs and Cosmetics Act 1940 and the Drug and Cosmetic Rules 1945 have been responsible for the regulation of cosmetic products in India. According to the Drugs and Cosmetics Act 1940, a cosmetic is defined as “any article intended to be rubbed, poured, sprinkled or sprayed on, or introduced into, or otherwise applied to, the human body or any part thereof for cleansing, beautifying, promoting attractiveness or altering the appearance, and includes any article intended for use as a component of cosmetic”.
A system of inspection and licensing is enforced by the State Licensing Authorities appointed by the respective authorities for the manufacture of cosmetics. The Central Drugs Standard Control Organization (CDSCO) regulates the import of cosmetics in India through a registration system.
If a product meets the definition of cosmetic (as defined by the 1940 Act), it must be registered with pack size, variant(s), and manufacturer. Importing or manufacturing a cosmetic product that does not comply with set specifications and quality or safety standards is prohibited. The main aim of the CDSCO is to protect and promote public health in India as well as to safeguard and enhance the public health by assuring the safety, medication, cosmetics, and medical device quality and efficacy.
Meaning and role of Intellectual Property Rights:
Intellectual property rights (IPR) refer to legal rights granted to an inventor or creator to protect his or her creation for a specified period of time. There are two kinds of rights that are granted for a period of time and they are:
1. Copyrights
2. Industrial property rights
Copyrights are basically given by the la itself to the creators of literary, drama, musical, and producers of cinematography, sound recordings and artistic works.
Industrial property rights generally protect the inventions, trademarks, industrial designs, models, copyrights etc. Anything which is different and is unique is protected under the industrial rights. The cosmetic industry comes under the industrial rights.
When we tend to obtain these rights for our own brand, or ideas, the product remains under our exclusive control and we maintain complete ownership. This helps one to protect their brand, preventing others from copying its ideas and it fosters the growth of their brand’s distinctiveness. To secure the aforementioned concepts and intellectual property, a cosmetic company or brand must turn to industrial property rights and the various options they provide, such as utility model protection, patent protection, and business secrecy protection. The process for making cosmetics in India is detailed in the Drugs and Cosmetics Rules, 1945.Under Schedule M-II, cosmetics fall within one of eleven major product categories:
- Powders,
- Body lotions, emulsions, pastes, cleansing milks, shampoos, pomade, shaving creams, hair oils etc.,
- Nail Polishes and Nail Lacquers,
- Lipsticks & Lip Gloss etc.,
- Depilatories,
- Preparations used for eyes,
- Aerosol,
- Alcoholic Fragrance Solutions (Cologne),
- Hair Dyes,
- Tooth Powders and Tooth Pastes etc.,
- Toilet Soaps.
Conditions for Obtaining a Cosmetic Business License
A licensing authority is appointed by the state government to handle product manufacturing. To manufacture any kind of product, an individual or company must receive a license from the Licensing Authority. The Drug and Cosmetics Act, 1940 states that the following permits are needed in India in order to manufacture cosmetic products:
1. Form No. 31 must be filed, and Form 32 is the license that is granted for the production, distribution, and sale of cosmetics.
2. Compulsory submission of Form 31A and a loan license for the production, distribution, and sale of cosmetics is granted on Form 32-A.
3. Form 36 has to be submitted compulsorily. Form 37 is issued for the grant or renewal of approval for conducting tests on drugs/cosmetics or raw materials used in their manufacture on behalf of licenses for manufacture for sale of drugs/cosmetics.
Testing of Cosmetic samples
It is required by the Bureau of Indian Standards (BIS) that cosmetic products undergo testing. It must satisfy the manufacturer, buyer, and consumer in addition to meeting all requirements for registration of imported cosmetic products. The following are included in the sample testing:
1. Physical and chemical examination of raw materials.
2. Microbiological quality control to guarantee the lack of pathogens and microbial counts
3. Estimation of active ingredients both quantitatively and qualitatively
4. Physical testing that takes into account characteristics like spreading, viscosity, scratch test, and pay-off test;
5. Studies on skin sensitivity and irritation.
6. Testing for stability and calculating shelf life, etc.
7. Safety tests to determine whether prohibited chemicals, colors, and heavy metals are present in cosmetics.
Documents necessary for Cosmetic Registration in India
The following documents are required:
- Together with the list of products that need to be renewed, Form 42 must be properly signed and submitted.
- Information of the Cosmetics- Brand names of the cosmetics along with their category, variants, and pack sizes to be imported for sale in India; Specifics of the manufacturing licenses/registration/marketing authorization.
- Power of Attorney
- Fees receipt
- Information regarding product- the names of the ingredients, the product’s specifications and testing procedure, a sample of the label, and any package inserts.
- Covering Letter
- Form 42
- Original/copy of the Label of the product
When copyright comes into action?
Copyright comes into action when there are issues related to the following:-
- Product advertising
- Product Photos
- Product Description
- Brand Ambassador Photography
- Product description videography
- Product manufacturing operational software
- Everything related to the marketing process and creativity in the industry.
Essentials of Copyright
- Fresh Work: – A work has to be the author’s original, new creation in order to be protected by copyright. A makeup artist must create a unique and inventive makeup look in order to obtain copyright protection for it.
- Originality- A work must be original in order to be protected by copyright. This indicates that it ought to be original work written by the author and not plagiarized. Being original doesn’t have to involve revolutionary invention; a fresh perspective on an old concept can be just as original. A short story you write with your own characters and storyline, for example, would be regarded as an original work.
Rights granted by copyrights
- Right to distribute the products
- Right to perform publicly
- Right to create derivative works
- Right to receive attribution
- Freedom to test-drive their own goods
Conditions to Patent Beauty Products
- According to regulations set forth by the patent office, every utility product needs to contain a potentially patentable component. This requirement is met by cosmetics since they are a combination of various separate ingredients. The finished product is safe for consumption and has a harmless composition. In addition, the company launching the beauty product needs to fulfill three more requirements from the patent office in order to be granted the patent.
- It is expected that the inventions submitted to the officers responsible for granting patents will be new. To put it plainly, the creator must demonstrate that his cosmetic formula is unique. In the event that an inventor appropriates a cosmetic formula after getting ideas from a product that was advertised online, his patent application will be rejected since the foundational formula is no longer novel.
- The creator needs to make sure that the cosmetic he has presented to the jury is formulated in such a way that a knowledgeable person with experience in the cosmetics business would not find your product obvious. It’s a challenging situation because patents can only be obtained when chemicals are used in a ratio and combination that no one has ever considered or tried before.
- Statutes define the terms and conditions of patents. Currently, the estimated lifetime of an active patent is 20 years, beginning on the day the inventor files the Indian patent application. This law complies with the Indian Patents Act of 1970. But before you can eventually protect these useful products, there are a few requirements that must be fulfilled.
Conclusion
Coordinating cosmetic laws and regulations is urgently needed for the development of new products as well as for the stability, safety, efficacy, and quality of existing ones. Instead of several state agencies operating under separate state guidelines, all guidelines and regulations must be consolidated and synchronized at the national level under a single authority, CDSCO. Therefore, in order to guarantee safe finished cosmetic products, it is necessary to strengthen the laws pertaining to control standards and safety information for cosmetics in India.