Cabinet Approves The Draft National IPR Policy Of India

Indian government has been preparing the draft national IPR policy of India for some time. Perry4Law Organisation (P4LO) has suggested that the proposed IPR policy of India must be techno legal in nature. P4LO has also provided its suggestions regarding the proposed Trade Marks Rules 2015 of India whereby we have suggested (pdf) for establishment of a strong and efficient trademark regime in India. The crux of all these discussions is that the proposed IPR policy of India must be technology driven and beneficial to small and medium enterprises, e-commerce players and entrepreneurs.

It has now been reported that the Cabinet has approved the national intellectual property rights (IPR) policy with a view to promoting creativity, innovation and entrepreneurship. The aim is to create awareness about economic, social and cultural benefits of IPRs among all sections of society, Union Finance Minister Arun Jaitley said on Friday while briefing reporters about Thursday's Cabinet decisions. The Department of Industrial Policy and Promotion (DIPP) will be the nodal department to co-ordinate, guide and oversee implementation and future development of IPR’s in India.

The minister also said that by 2017, the window for trademark registration will be brought down to one month. This means that starting 2017, trademark registration will take only one month. P4LO's suggestion number (11) on the proposed trademark rules recommended this requirement. We suggested that the proposed rule is a golden opportunity for the Indian Government/Registrar to speed up the trademark registration procedure that is suffering from backlog as on date.

We also recommend that the Registrar must not "discriminate" between those applicants who have paid additional fees for expedition and those who have applied through normal course of action. If the Registrar discriminates between those who have paying capacity and those who do not have such capacity, it would unnecessarily create hindrances before the small and medium enterprises and entrepreneurs. Indian government seems to have accepted these suggestions of P4LO.

According to Jaitley, there are seven objectives that guided the policy mechanism, which include IPR public awareness, stimulation of generation of IPRs, need for strong and effective laws and strengthening enforcement and adjudicatory mechanisms to combat infringements. The policy also puts a premium on enhancing access to healthcare, food security and environmental protection. It is expected to lay the future road map for intellectual property in India, besides putting in place an institutional mechanism for implementation, monitoring and review.

The policy recognizes that India has a well-established TRIPS-compliant legislative, administrative and judicial framework to safeguard IPRs, which meets its international obligations while utilizing the flexibilities provided in the international regime to address its developmental concerns. It reiterates India's commitment to the Doha Development Agenda and the TRIPS agreement.

Proposed Trade Mark Rules 2015 What Business Houses And E-Commerce Websites Need To Know

Readers of our blogs must be aware that the Ministry of Commerce and Industry, Department of Industrial Policy and Promotion, has issued the Draft Trade Marks Rules, 2015 (PDF) for public comments on 17^th November 2015. Perry4Law Organisation (P4LO) and Perry4Law Law Firm have already provided an analysis of the proposed Trade Marks Rules 2015 Of India (PDF). Various stakeholders can read the same from the above mentioned link.

Trademarks are not given much importance in India by business houses and individuals. Brand management and intellectual property rights protection should be on the priority list of top management and they must be part of corporate policies. Domain names must be adequately safeguarded and protected by business houses and e-commerce websites and companies as well.

Trademark and brand protection requires a well drafted and properly executed strategy. This starts even before the business venture or e-commerce website is launched. Of course, e-commerce laws are also required to be complied with simultaneously. As on date, most of the e-commerce website owners are neither following the laws of India nor are they paying any attention to trademark protection.

It is very important that business houses, individuals and e-commerce websites must be aware of the proposed trademark rules 2015. Some of the salient features of the proposed trade mark rules 2015 are as follows:

(1) The forms relating to trademarks have been significantly reduced. This would help in reducing the unnecessary documentation and their conversion into electronic format.

(2) The filing fees have been doubled with little correlation with the proposed trademark services. There seems to be no direct relationship between the increased fees and the nature and quality of services proposed to be offered by the trademark registry.

(3) Time bound performance on the part of trademark registry is missing from the proposed rules.

(4) The proposed rules have not given emphasis upon e-delivery of trademark services in India. This would be a serious jolt to the Digital India project of Indian government that is already suffering from many shortcomings and weaknesses.

(5) Fees concessions for e-filings have been suggested by the proposed rules. This is an indirect method to force the stakeholders to adopt e-filing instead of paper filing. However, Indian government needs to spread awareness about e-filing along with providing better e-filing facilities.

(6) Well known trademarks have again been recognised by the proposed rules. However, there is an urgent need to draft suitable guidelines to deal with well known trademarks in India.

(7) More stringent requirements have been prescribed for establishing prior use by the trademark applicants.

(8) Provisions for expeditious disposal of applications with additional fees has been retained. However, expeditious disposal of trademark applications must be the norm irrespective of the fact of additional payment of fees. The same is missing as on date.

We hope our readers would find this update useful. We also hope that business houses, e-commerce websites and individuals would actively take part in strengthening of their intellectual property rights in general and trademark in particular.

Proposed US Rulemaking For Section 1201 Exemptions

United States (U.S.) is currently involved in a rulemaking exercise that would grant exemptions from prohibition against circumvention of technological measures protecting copyrighted works. If this rulemaking is successful, it would allow exemption to certain classes of works from the prohibition against circumvention of technological measures that control access to copyrighted works.

IPR Helpdesk of Perry4Law Organisation and PTLB has covered this issue here. Further updates on this topic would also be posted on this article as well. You may also check the Twitter account of IPR Helpdesk India in this regard for intellectual property rights (IPRs) related updates from India and abroad.

The IPR Helpdesk of India was launched in the year 2007 when it celebrated the renowned World IP Day of World Intellectual Property Organisation (WIPO). Some of the public awareness initiatives of IPR Helpdesk of India include celebration of WIPO Week-2007(Please read here1 and here2 in this regard), providing of Intellectual Property Rights Trends in India-2007, celebration of World IP Day 2008 Of WIPO as WIPO Week- 2008, celebration of World IP Day 2009 Of WIPO, suggestions on proposed rulemaking by United State Copyright office for Section 1201 exemptions to prohibition against circumvention of technological measures protecting copyrighted works, etc.

The IPR Helpdesk of India would provide its comments on the abovementioned topic and the same would be posted here one by one. This is in continuation of Perry4Law Organisation’s commitment to spread public awareness in the field of IPRs in general and techno legal fields in particular. We hope various stakeholders would find our initiatives useful.

WTO Settles Trade Dispute Between India And US Regarding Certain Steel Products

The World Trade Organisation (WTO) has recently settled a trade dispute between India and United States that partially covered the interests of both countries. The dispute at WTO pertained to imposition of countervailing measures on certain hot-rolled carbon steel flat products from India.

The final report of the Appellate Body at WTO has been released on 8th December 2014. Our readers and other stakeholders can read the document titled United States – Countervailing Measures on Certain Hot-Rolled Carbon Steel Flat Products from India – AB-2014-7 -Report of the Appellate Body (PDF) for more details. A summary of the same has also been made available by IPR Helpdesk of Perry4Law and PTLB as WTO Summary of the Dispute Settlement of Dispute No DS436 between India and US (PDF).

This decision is a mixed one where India prevailed over U.S. on few issues while U.S. prevailed over India on others. Nevertheless it is a big relief for Indian steel exporters who were facing uncertainties till now.

US has been showing its discomfort with the Indian IP regime whereas India has been steadily maintaining that its IP laws are in strict conformity with India’s international obligations under the WTO and TRIPS Agreement.

Nevertheless, India has decided to formulate the national IPR policy of India to alleviate the fears of US and other countries. We at Perry4Law and Perry4Law’s Techno Legal Base (PTLB) believe that the proposed IPR policy of India must also include technology aspects as well to be more effective.

These recent developments have resulted in the acceptance of India position regarding its international IP protection obligations to some extent. Even US has also softened its stand in this regard and this issue may not be discussed during the US President Obama’s visit to India.

National IPR Policy Of India And Technology Issues

Indian government is in the process of formulating the National Intellectual Property Rights (IPRs) Policy of India and preliminary formalities have already been completed in this regard. A group of experts have been brought together in the form of a think tank that would assist the government in this regard.

We at Perry4Law and Perry4Law’s Techno Legal Base (PTLB) welcome this move of Indian government and we wish and hope that the proposed national IPR policy of India would be released very soon. With the experts on the board, the proposed IPR policy would be drafted with best intentions and in the most appropriate manner.

We also hope and presume that the think tank would also consider the technology aspects of intellectual property rights while drafting the policy document. For instance, issues pertaining to domain name dispute resolution, cyber squatting, online copyright violations and their redressal, pirated TV broadcasting, industrial espionage, e-books, anti piracy redressal mechanism, online brands infringements and their management, international exhaustion of trademarks,  challenges of new GTLDs, etc must also be considered while formulating the proposed national IPR policy of India.

Public awareness about IPRs protection and management in India is very low. At time companies and individuals take actions that are clearly illegal. Similarly, many times stakeholders are not aware that they are actually violating the IPRs of others. In many cases IPR protection under patent law of India is lost for improper handling of the product to be patented. Conflict of laws in cyberspace also requires compliance with laws of other jurisdictions to get appropriate relief.

IPR Helpdesk of Perry4Law has been spreading public awareness about IPRs in India and abroad since 2005. We believe that there is an urgent need to reform Indian IP laws keeping in mind the use and impact of technology upon them. The proposed national IPR policy of India also needs to cater technological issues of IPR in India. We hope the same would be achieved for the larger benefit of all stakeholders.

Dish TV Set Top Boxes Used Illegally In UAE

Digital contents have become a valuable commodity these days. The entertainment industry of India has also understood this fact very clearly. As a result it is trying hard to get maximum share in local and international markets.

However, these efforts must be legal in nature to be effective. The latest episode of illegal import of set top boxes of Dish TV and TataSky in UAE is an example where these companies are required to keep a close watch.

We hope these companies would have taken note of this negative development and must have framed techno legal polices to insulate themselves from legal actions originating from around the globe.

Mozilla Issued Cease And Desist Notice To Gamma International For Maliciously Using Its Brand and Reputation

E-surveillance can result in trademark infringement and brand violation. This sounds strange but recently this sort if case come to our knowledge. A report provided by Citizen Lab has disclosed this bizarre and criminal violation of Mozilla Firefox’s trademark and rights.

Media Law has discovered that commercial Spyware manufacturer Gamma International has been engaging in unethical behaviour by disguising and using its malware as Mozilla Firefox software. Naturally, users seeing the Mozilla Firefox files would neither doubt the integrity of that malicious file nor would they care to do a virus or malware scan upon assumed white listed and trusted software and its corresponding files.

This way the malware can remain undetected and it can keep on functioning illegally and unnoticed. The Spyware is known as FinFisher that has been openly abused by draconian and repressive governments around the world. These incidences reaffirm the commitment to ensure civil liberties protection in cyberspace.

Reacting sharply, Mozilla Firefox had sent Gamma a cease and desist letter demanding that these illegal practices stop immediately. Mozilla said that it cannot abide a software company using its name to disguise online surveillance tools that can be – and in several cases actually have been – used by Gamma’s customers to violate citizens’ human rights and online privacy.

The malware does not affect Firefox itself, either during the installation process or when it is operating covertly on a person’s computer or mobile device. Gamma’s software is entirely separate, and only uses Mozilla’s brand and trademarks to lie and mislead as one of its methods for avoiding detection and deletion.

To avoid detection from anti virus and anti malware softwares, Gamma misrepresents its program as “Firefox.exe” and includes the properties associated with Firefox along with a version number and copyright and trademark claims attributed to Firefox and Mozilla Developers. For an expert user who examines the underlying code of the installed spyware, Gamma includes verbatim the assembly manifest from Firefox software. This way it could remain undetected and keep on operating at the user’s computer.

This is a serious issue and Mozilla should take strict action against all those who are abusing its trademark and name to deliver malware. It is not only the legal but also the moral responsibility of Mozilla to keep its users safe from such malware and illegal and deceptive uses.