An influencer is someone, who has access to a large audience along with the power to affect the purchasing decisions of the consumer. Owing to their influence on the audience, influencers have the power to alter consumer opinion on a product or service and therefore purchasing decision.  The trend of social media influencers is not new, but rather has been prevalent for quite some time. There are many social media influencers with a significant number of followers, engaged in endorsement of goods and services of different brands.

Nowadays, virtual influencers are also trending on social media and gaining popularity. As the name suggests, virtual influencers are influencers with virtual identity and could be understood as an artificial computer-generated influencer driven by artificial intelligence, with the possible appearance, characteristics and personality of a human being. Just like a social media influencer, these virtual influencers also have access to large audience on social media, one such examples is the Instagram account of the famous virtual influencer Miquela with around three million followers.[1] Owing to such large audience and fandom, virtual influencers could also influence and alter the purchasing decision of a consumer, just like an any other social media influencer. Hence, it is important to regulate the claims and endorsements made by the virtual influencer as well. However, since liability cannot be imposed on the virtual influencer, the question arises should the liability be shared between the brand-owner and the companies behind such virtual influencer?

So far, the reference to virtual influencer could only be found in the recently issued Advertising Standards Council of India (ASCI) guidelines for “Influencer advertising on digital media”[2], defining virtual influencer as , “…fictional computer generated ‘people’ or avatars who have the realistic characteristics, features and personalities of humans, and behave in a similar manner as influencers.” and also putting a liability on virtual influencers to disclose to the consumers that they are not interacting with a real human being. The new ASCI guidelines could be seen as a first step towards recognition of virtual influencers.

That said, since virtual influencers are a product of Artificial Intelligence, and cannot act independently, there is a need to put liability on the person behind these virtual influencers and need for due-diligence to be exercised by both brand owners as well as the companies behind these virtual influencers.

[1] https://www.instagram.com/lilmiquela/?hl=en

[2] https://asci.social/guidelines

Disclaimer: Views, opinions, interpretations are solely those of the author, not of the firm (ALG India Law Offices LLP) nor reflective thereof. Author submissions are not checked for plagiarism or any other aspect before being posted.

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There seems to be a prevalent trend in most law universities in terms of career choices. Students are molded to aspire to the law firm life- join the elite group of lawyers, gain access to a plethora of resources and obviously an attractive remuneration. Discussions about the possibility of going solo are rarely serious or substantive. Initiating such discussions in law schools can even be met with derision. Going solo entails straying from the path of joining a law firm and starting one’s own practice, either individually or as a firm. The divergence is often stigmatized to mean a failure at securing a law firm job.

Working at a law firm from the nascent stage provides opportunity for learning and is believed to be more forgiving of errors. In reality, however, different law firms can be less or more forgiving of errors made by trainee associates and junior associates. The grooming in a law firm, coupled with the ample resources, in my opinion chisels amateurs into successful lawyers. Law firms provide the stability required to grow in the initial years and help expand the professional network of peers and clients alike.

The hours expected to be put in a law firm can, however, become overwhelming and adversely affect the personal life. Mentoring on an established platform is seldom done. So, the young talent start aping the spent forces to fit into the system. Individuals with possible knowledge solutions and innovation struggle to establish personal identity.

Intellectual leadership is a possibility when one breaks free of the establishment. Disruptive innovation happens when they dare to err. A solo practice might have a slow start but often ensures greater prospects of growth in the longer run.

However, solo practice as an IP lawyer might not draw in the clientele, who normally aim for the top tier firms having goodwill and reputation. A solo practice belies the belief of having enough expertise and resourcefulness to thrive in a field as technical as IP. Also, the shortage of capital and time limits the number of cases that can be handled efficiently by a single lawyer.

To conclude, this author is of the view that different paths work for different people. While it may seem challenging to someone to turn down a steady income and stable job and dive into the uncertainties of going solo, others revel in the freedom and independence it brings. Whether to go solo or not is and should be a highly personal decision based on self-awareness as well as an assessment of the market and industry trend. The trajectory of the career graph is also individual specific and there is no right or wrong time to venture into solo practice. For a young lawyer wanting to practice IP law, the technical nature of the IP field must also be kept in mind while considering the path to adopt. 

Disclaimer: Views, opinions, interpretations are solely those of the author, not of the firm (ALG India Law Offices LLP) nor reflective thereof. Author submissions are not checked for plagiarism or any other aspect before being posted.

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The Advertising Standards Council of India (ASCI), has now released its final guidelines for “Influencer advertising on digital media”. Earlier in February, 2021, ASCI released the draft guidelines for “Influencer advertising on digital media” for stakeholder consultation and based on the feedback received, has now released the final guidelines.

The guidelines define an influencer as someone who has access to an audience and the power to affect their audiences’ purchasing decisions or opinions about a product or brand, because of their authority, knowledge, position, or relationship with their audience. The final Guidelines has also added the definition for virtual influencer as, “…fictional computer generated ‘people’ or avatars who have the realistic characteristics, features and personalities of humans, and behave in a similar manner as influencers.”   

As per the guidelines all advertisements published by social media influencers or their representatives, on influencers’ accounts must carry a disclosure label that clearly identifies it as an advertisement. This disclosure is required if there is a material connection between the advertiser and the influencer. The material connection is not limited to monetary compensation but also includes other compensations, free gifts with or without any condition. Disclosures are required even if the evaluations are unbiased or fully originated from the Influencer, as long as there exists a material connection between Advertiser and Influencer.

Under the guidelines the disclosure should be upfront and prominent so that it is not missed by an average consumer. Unlike the earlier draft guidelines for stakeholder consultation, which restricted disclosure label options strictly to five hashtags, #ad, #collab, #promo, #sponsored  and #partnership. The final guidelines provides a list of disclosure label options to choose from which includes, Advertisement, Ad, Sponsored, Collaboration, Partnership, Employee, Free gift.

Earlier, the draft guidelines provided that in the case of a brand using a virtual influencer, the onus of the disclosure is upon the advertiser. However, the final guidelines provide that a virtual influencer must additionally disclose to consumers that they are not interacting with a real human being. The final guidelines provide that the responsibility of disclosure of material connection and also of the content of Advertisement is upon the Advertiser, and also upon the Influencer. The final guidelines do not have any separate liability in case of virtual influencer with respect to disclosure of material connection.

The final guidelines are accessible here: https://asci.social/guidelines. The guidelines will be applicable to all promotional posts published on or after June 14, 2021.

Disclaimer: Views, opinions, interpretations are solely those of the author, not of the firm (ALG India Law Offices LLP) nor reflective thereof. Author submissions are not checked for plagiarism or any other aspect before being posted.

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The Draft Patent (Amendment)Rules, 2021 (Draft Rules) were published by the Government of India vide the Department of Promotion of Industry and Internal Trade under the Ministry of Commerce and Industry on 9^th February, 2021 to further amend the Patent Rules, 2003. The proposed amendments are aimed at encouraging educational institutions which satisfy the criteria to file patent applications for protecting their inventions. The following changes have been proposed to Patent Rules, 2003:

1. Under Rule 2 which pertains to definitions, Sub Rule (ca) has been added, wherein, a new category of ‘eligible educational institution’ has been introduced and defined to mean “an educational institution established by a Central, Provincial, or State Act, which is owned or controlled by the Government, and which is wholly or substantially financed by the Government”.
2. Two amendments have also been proposed in Rule 7.The phrase ‘eligible educational institution’ has been added to the second proviso to Rule 7 (1) which relates to fees payable. Table 1 of Schedule 1 which lays down the fees payable by different entities has also been amended to include this category. The fee payable by eligible educational institutions is at par with the fee payable by natural person, startups and small entities, and the institutions must submit the Declaration under Form 28 to claim the benefits. Changes have been proposed in Form 28 under Second Schedule for the same. As per new Form 28 the applicant (Indian as well as foreign) needs to submit documentary evidence whether such institutions are established under a Central, State or Provincial Act, which is controlled or owned by the Government and wholly or substantially financed by the Government. Accordingly, Rule 7 (3) is also amended to include the new category of applicant.
3. Addition of clause (k) to Rule 24C which is about expedited examination of applications. Through clause (k) the provision of expedited examination has been extended to applicants who fall under the category of an ‘eligible educational institution’. Form 18 and 18A in Second Schedule are also updated to include this category.

The Draft Rules were open for submitting any suggestions and objections by any person affected by the proposed amendments. They were to be submitted within a period of thirty days from 9^th February, 2021 in order to be considered.

Draft Patent (Amendment) Rules, 2021: https://dipp.gov.in/sites/default/files/DraftAmendmentRules-10February2021.pdf

Disclaimer: Views, opinions, interpretations are solely those of the author, not of the firm (ALG India Law Offices LLP) nor reflective thereof. Author submissions are not checked for plagiarism or any other aspect before being posted.

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The Ministry of Law and Justice on 4th April, 2021 published the Tribunals Reforms (Rationalisation and Conditions of Service) Ordinance, 2021. The Ordinance amends certain Acts. The Ordinance has abolished Tribunals, Appellate Authority and Intellectual Property Appellate Board (IPAB) under various statutes.

Appeals against orders of the Board of Film Certification under The Cinematograph Act, 1952 will now lie with the High Court instead of the Appellate Tribunal. Similarly, appeals against orders of the Registrar of Copyrights under The Copyright Act, 1957  will no longer lie with the IPAB;  appeals against orders of the Customs Authority for Advance Rulings under the Customs Act, 1962 will no longer lie with Appellate Board;  appeals against orders of the Controller of Patents under Patents Act, 1970,  will no longer lie with the IPAB;  appeals against orders of the Registrar of Trademarks under The Trade Marks Act, 1999, will no longer lie with the IPAB;  appeals from the decision of the Registrar of Geographical Indications will no longer lie with the IPAB and the appeals against The Protection of Plant Varieties and Farmers’ Rights Act, 2001, will no longer lie with the IPAB. Under all these statutes, appeals will now lie with the High Court.

In relation to the Trade Marks Act, 1999, rectification petitions that could earlier be filed before the IPAB are now to be filed before the High Court instead. The Ordinance provides that even pending proceedings, appeals as well as rectifications, shall stand transferred from the concerned specialized Tribunal/IPAB to the High Court. The High Court will decide whether to pick up any proceeding from the stage at which it was at immediately before being transferred from the specialized Tribunal/IPAB or whether to pick it up from such earlier stage that it deems fit.

The Ordinance also deals with certain other aspects. Under the Copyrights Act, 1957, the Commercial Courts including the Commercial Division of the High Court are now empowered to determine whether a work has been published earlier. The Commercial Courts are also empowered to determine disputes with respect to assignment of Copyright. Prior to the Ordinance both these powers were vested in the Intellectual Property Appellate Board (IPAB). 

The Ordinance can be accessed at:  https://copyright.gov.in/Documents/Pdf/Tribunals_Reforms__Rationalisation_And_Conditions_Of_Service__Ordinance__2021.pdf 

Disclaimer: Views, opinions, interpretations are solely those of the author, not of the firm (ALG India Law Offices LLP) nor reflective thereof. Author submissions are not checked for plagiarism or any other aspect before being posted.

Copyright: ALG India Law Offices LLP