Cross-border IP agreements and the India enforcement gap: Why localisation must begin at the drafting stage

The contract does not fail everywhere. It fails exactly where enforcement begins.

That sentence, stripped of any jurisdiction clause or party name, reflects a pattern appearing with increasing regularity as cross-border commerce deepens its presence in India. Two parties often a foreign licensor and an Indian licensee, or an overseas brand and a domestic distributor enter a relationship governed by a carefully negotiated agreement. The agreement reflects assumptions about courts, remedies, and what happens when something goes wrong. Those assumptions are frequently correct. Just not in India.

This is not a critique of Indian law. It is an observation that Indian law operates differently and that difference, when unaddressed at the drafting stage, surfaces only after infringement occurs and remedies that once appeared straightforward become procedurally complex.

India is no longer merely a downstream execution jurisdiction. In many sectors, it has become a primary deployment market. The agreements governing these relationships have not kept pace with that transition

Most international IP agreements whether licences, distribution arrangements, co-development contracts, or technology transfer agreements share a familiar architecture. There is a governing law clause, typically selecting a neutral or licensor-friendly jurisdiction. There is a dispute resolution mechanism, usually arbitration. Representations confirm ownership. Warranties address infringement risk. Indemnities allocate liability if things go wrong.

This architecture reflects decades of transactional practice calibrated to systems within which those agreements were designed to operate. Difficulty arises not because Indian law rejects this architecture, but because it operates through its own enforcement grammar.

Consider the indemnity clause. Under most common-law systems, broad infringement indemnities operate largely as drafted. In India, Section 124 of the Contract Act, 1872 and judicial interpretation of recoverable losses means the clause does not collapse. It simply delivers less than it promised. That gap between contractual promise and statutory delivery is precisely where localisation earns its value.

In the early 2010s, several international lifestyle and technology brands discovered that trademarks assumed to be globally protected had already been registered in India by unrelated parties before market entry. Distribution agreements relied on global ownership assumptions that did not translate into territorial enforceability.

Toyota v. Prius settled the governing principle: global registration and prior use abroad does not establish goodwill within India. Read alongside Whirlpool (1996) where the Supreme Court recognised trans-border reputation built through advertising spillover even where the product had not yet reached Indian shelves the contrast is instructive. The difference between those outcomes was not doctrine. It was evidence of meaningful market presence at the relevant time. Distribution agreements drafted on global ownership assumptions carried no answer to that question.

Software platforms deployed commercially in India under global licensing structures encountered enforcement complications once disputes arose and local registration status became relevant to interim protection. The contracts were drafted carefully. They were simply drafted for a legal environment that turned out not to be India's.

A second dimension of this problem surfaces in how ownership chains are structured during early-stage deployment, particularly in India-linked transactions involving startups, joint ventures, or inbound technology partnerships.

Brand assets are filed in founder names rather than entity names. Design work is commissioned through agencies without assignment documentation. Software components are integrated under informal licence arrangements that do not anticipate downstream scaling or cross-border investment. These structures attract little attention while relationships remain cooperative.

They become visible during investment diligence, licensing negotiations, or integrations. What appears commercially integrated at launch often turns out to be legally distributed across multiple ownership layers once enforceability becomes relevant. At that point, the question is whether the party seeking to enforce the IP actually owns it in the jurisdiction where enforcement must occur.

Localisation at this stage becomes a structural realignment between contractual intention and the jurisdiction-specific rights structure enforcement will require.

In many jurisdictions, IP disputes unfold gradually, giving parties space to negotiate adjustments. In India, they frequently begin with urgent interim injunction proceedings capable of reshaping commercial realities within days before the merits of the claim have been examined.

The Delhi High Court and Bombay High Court have developed interim relief jurisprudence that moves faster than most foreign counsel anticipate. Ex-parte injunctions are routinely granted where urgency is established. John Doe (Ashok Kumar) orders enable enforcement against unidentified infringers across digital and broadcast environments, as in UTV Software Communication Ltd v. 1337X. Local Commissioners are frequently appointed to preserve evidence at early stages.

As recognised in Wander Ltd v. Antox India Pvt Ltd, interim injunctions are intended to preserve commercial realities pending trial. In practice, the interim stage frequently becomes the dispute itself. Licensing arrangements that assume continued usage pending resolution may encounter immediate operational disruption. Replacement-remedy clauses that function within longer negotiation windows elsewhere may prove difficult to implement once an injunction has changed the facts on the ground.

Agreements that do not anticipate this enforcement sequencing frequently promise remedies that are difficult to operationalise once proceedings begin in India.

Many cross-border IP agreements rely on arbitration clauses to manage enforcement risk through neutrality and predictability. However, IP disputes involving India-linked transactions frequently develop along parallel enforcement pathways that arbitration clauses alone cannot contain.

Indian courts retain jurisdiction to grant interim measures even in arbitrable disputes. The Supreme Court in Vidya Drolia v. Durga Trading Corporation clarified that disputes concerning the grant and registration of patents and trademarks are non-arbitrable, while contractual disputes concerning the right to use an already-registered mark remain arbitrable. The consequence is not that arbitration becomes ineffective. It is that arbitration clauses must be drafted with enforcement sequencing in mind.

Much of the drafting of cross-border IP agreements is undertaken by foreign counsel. What they cannot always anticipate is how those agreements interact with Indian enforcement practice once disputes arise. That gap requires Indian counsel involvement at the drafting stage not merely at the enforcement stage.

The pattern is familiar. Foreign counsel drafts the agreement to a high standard. Indian counsel is consulted when infringement occurs. By that point, the options available to the client are narrower than they would have been had the conversation happened earlier.

This dynamic appears across employment disputes, distribution relationships, regulatory compliance structures, and technology deployment arrangements, wherever carefully drafted cross-border documentation meets India's enforcement environment.

Localisation is not translation. It is structuring.

It begins with indemnities calibrated to categories of loss Indian courts will recognise and critically, whether that indemnity survives parallel criminal proceedings under the Trade Marks Act or Copyright Act, both of which carry independent cost and remedy structures. It extends to dispute resolution clauses with explicit interim relief carve-outs: routing all disputes to arbitration without preserving the right to seek urgent injunctive relief from an Indian court may inadvertently surrender the fastest and most effective remedy available. Ownership representations must be stress-tested against Indian registration status, not assumed from global filing positions. And enforcement economics matter litigation in India, particularly at the interim stage, involves court fees, advocate fees, and parallel criminal and civil exposure. An indemnity cap negotiated without accounting for that full cost structure may well be exhausted before enforcement is complete.

Localisation also requires clarity about enforcement jurisdiction not merely governing law. Knowing which law governs the contract is not the same as knowing where enforcement will occur. Both questions deserve answers at the drafting stage.

As India becomes a central jurisdiction in cross-border branding, technology deployment, and licensing strategies, the distinction between globally portable agreements and India-ready agreements is becoming increasingly visible. The question is no longer whether localisation will be required, It is when?

In most transactions where India is a meaningful commercial destination, the answer is straightforward: at the beginning.

The gap between a carefully drafted cross-border IP agreement and an enforceable one in India is rarely large. But it is almost always deliberate the result of choices made when parties were focused on the relationship, not on the remedies. Closing that gap is itself a structuring decision. And structuring decisions are most effective when they are made early.

About the authors: Soumya Singh and Yukti Gupta are Founders and Managing Partners of Thistle & Law.

Disclaimer: The opinions expressed in this article are those of the author(s). The opinions presented do not necessarily reflect the views of Bar & Bench.

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