As COVID-19 swept the world, the consequent mandatory health protections, such as nationwide lockdown and social distancing resulted in traditional court system and physical hearings coming  to a halt. As a result, the legal profession was forced to adapt to  the technology-enabled virtual courts, which arrived much sooner than expected.

The Trade Marks Office (“TM Office”) also adapting to this novel situation, notified that it will commence show-cause hearings in  trademark matters through video conferencing.[1] However, the TM Office has not made these virtual hearings mandatory and  has provided that only those matters will be listed  wherein applicants or their authorised agents have consented (via email to the TM Office) to attend hearings through video conferencing.

The concept of virtual hearings is not new and was introduced by the Trade Marks Rules, 2017 with the objective of expediting the registration process. As a matter of fact, the TM Office even in the past has conducted virtual hearings , but it never attracted the attention of practitioners much . However, currently, with the pandemic radically changing the state of affairs, virtual hearings  in trademark matters is a much appreciated move. The same is reckoned to not only provide relief to cases drastically distressed by an absolute lockdown,  but also help in clearing  the backlog at the TM Office.

 Notably, at present, the TM Office has only specified that  virtual hearings  will be held in  show-cause matters. However, it should be taken into consideration that remote and virtual functioning is the new way of the world’s working and it is here to stay. Given the state of backlog in the contested/opposition matters at the TM Office, it is imperative that introducing a policy for conducting virtual hearings  in opposition matters as well be considered. We are seeing a total shift in outlook and approach at all levels, with the Supreme Court, the High Courts, and other judicial bodies attending to contested cases through virtual mode on a day-to-day basis. In light of this, the TM Office should also consider going fully virtual viz. even in contested/opposition matters. .

As the TM Office will likely continue its operations virtually for the time being, enabling attendance to opposition matters through virtual mode will only be a step  forward  and may very well be appreciated by practitioners and as well as the concerned parties. As of now, the TM Office continues to conduct virtual hearings in show-cause matters, however it will be interesting to see as and when the TM Office commences attending to contested matters virtually.

[1] Trade Marks Registry Public Notice dated August 26, 2020, < http://ipindia.nic.in/writereaddata/Portal/News/707_1_Public_Notice_TLA.pdf>, last accessed on December 30, 2020.

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 Electronics and Information Technology (MeitY), in November 2020, released the draft Data Centre Policy (“the Policy”) for evolution of Data Centres infrastructure within India, necessitated by the data localization provisions of the Data Protection Bill. The Policy emphasizes its vision to “Make India a Global Data Centre hub, promote investment in the sector, propel digital economy growth, enable provisioning of trusted hosting infrastructure to fulfil the growing demand of the country and facilitate state of the art service delivery to citizens.”

The Policy outlines strategies for growth of Data Centre Sector (DCS). It proposes that an “Infrastructure Status” be attributed to DCS such that it avails benefits of long-term credit from lenders at easier terms. It suggests having Data Centre Incentivization Scheme (DCIS) which will, inter alia, specify fiscal and non-fiscal incentives for DCS. It further proposes setting up of specific zones called Data Centre parks (viz. secure Data Zones to serve the high needs of storage, networking and provision of a wide range of data-related services) with necessary infrastructure such as electricity, water etc.

To create a favorable ecosystem for better operation of DCS, the Policy lists key focus areas which include provision of better infrastructure such as quality, uninterrupted and long-term power supply, setting up power generation units at the Data Centre Parks, using renewable energy etc. It indicates that MeitY along with the Department of Telecommunications would facilitate robust and cost-effective connectivity backhaul by providing utility corridors for Optical Fibre Cables, dark fibre etc. It suggests enabling a Dial Before You Dig Policy to “allow easy access to information about the underlying network infrastructure” and improving international connectivity which “will be a key driver for global players…for their Data Centre investments”. It further proposes having a single window clearance system for setting up Data Centres and declaration of Data Centres as ‘Essential Service’ under The Essential Services Maintenance Act, 1968 for enabling continued services. It emphasizes on creation of a separate category code for Data Centres buildings in the National Building Code, 2016.

The Policy proposes setting up of Data Centre Economic Zones comprising Hyper-scale Data Centers, Cloud Service Providers, IT companies, R&D units etc. It outlines an institutional mechanism for governance wherein it is proposed that the following bodies be set up: Inter-Ministerial Empowered Committee (IMEC), a decision-making body in the DCS, Data Centre Facilitation Unit under IMEC to oversee implementation of various measures and initiatives and Data Centre Industry Council to act as an interface between DCS and the Government.

The draft Policy can be accessed at: https://www.meity.gov.in/writereaddata/files/Draft%20Data%20Centre%20Policy%20-%2003112020_v5.5.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.

In the wake of the global health crisis caused by COVID-19, India and South Africa have made a joint proposal to the World Trade Organization (WTO) Council for Trade-Related Aspects of Intellectual Property Rights (TRIPS). The Proposal seeks that the Council recommend waiver from implementation, application and enforcement of Sections 1, 4, 5 and 7 of Part II the TRIPS Agreement in relation to “prevention, containment or treatment of COVID-19”.

The Proposal has been made in view of the growing number of positive cases, rising death toll, continual impact of preventive measures such as distancing practices on economic activities and healthcare facilities, and the claimed disproportionate impact of all the above on developing and least developed countries. It views unimpeded access to affordable healthcare treatments and facilities, including, but not limited to essentials such as diagnostic kits, ventilators and possible vaccines, as an effective step towards managing the universally growing needs. Towards this, it hypothesizes Intellectual Property Rights as possibly impeding the above aim, and therefore proposes waiver of the aforementioned provisions in respect of “prevention, containment or treatment of COVID-19” for an indeterminate period, with a provision for annual review by the General Council.

The Proposal specifically recognizes that the treatments, equipment and know-how required to combat the crisis are covered by multiple IPR regimes, and are not necessarily:

(i) limited to ‘production of pharmaceutical products’ as currently covered under Article 31bis of the Agreement; or

(ii) accessible to countries that do not meet the standards required under the provision.

The Proposal is under discussion by the TRIPS Council, and was last tabled on October 16, 2020, where Eswatini and Kenya came forward as co-sponsors, and various other developing and least developed members such as Bangladesh, Sri Lanka, Nepal, Egypt, Tanzania on behalf of the African Group, Nicaragua, Honduras, etc. came in support of it. As of the last session, it also had significant opposition from vastly developed members including the European Union, United States of America, Norway, the United Kingdom, etc. The Council has not yet arrived at a decision on the Proposal, which will likely be discussed in further sessions.

The Joint Proposal can be accessed here: https://docs.wto.org/dol2fe/Pages/SS/directdoc.aspx?filename=q:/IP/C/W669.pdf&Open=True

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 Kris Gopalkrishnan Committee, in July 2020, suggested a framework for regulation of Non-Personal Data (‘NPD’) vide its Report on Non-Personal Data Governance Framework (‘the Report’). The Report, inter alia, emphasized the belief that “shared Non-Personal Data may be useful for Indian entrepreneurs to develop new and innovative services and products”, thus, highlighting the need for regulating the same.

The Report outlined a definition for NPD as “Firstly, data that never related to an identified or identifiable natural…Secondly, data which were initially personal data, but were later made anonymous.”. It classified NPD into ‘Public’, ‘Private’ and ‘Community’ categories based on the sources of data. It proposed borrowing concepts like ‘data sensitivity’ and ‘consent’ from Personal Data Protection Bill, 2019. It suggested that individuals should provide consent for anonymisation and use of personal data and recommended that a sensitivity characteristic ranging from general to sensitive and critical from the perspective of de-anonymization of personal data, national security, etc., be attributed to NPD.

The Report laid down key roles in the NPD Ecosystem viz. Data Principal (subject of the data), Data Custodian (who undertakes to collect/store/process/use data), Data Trustee (through whom data rights can be exercised) and Data Trusts (which oversee storing/sharing data). Articulating a legal basis for ownership over NPD, the Report recommended adopting the notion of ‘beneficial ownership’. It suggested that while Public NPD be treated as national resource, rights over Community NPD should vest with the relevant community and rights over Private NPD, excluding data pertaining to a community, should vest with the relevant private entity.

The Report proposed creation of ‘Data Businesses’ comprising of organizations that meet a certain threshold of data collection/processal. These organizations are required to enable open access to meta-data about data being collected/stored/processed for listed purposes viz. sovereign, economic and core public interest. By looking at this meta-data, requests may be made by other individuals/organizations for detailed underlying data. The Report highlighted the need to establish appropriate data sharing mechanisms. It, inter alia, discussed a mechanism for tackling cases pertaining to refusal of data requests by Data Businesses wherein it suggested that a further request be made to NPD Authority, an authority proposed to be created with an enabling and enforcing role in the realm of NPD, which will evaluate the case from social/public/economic benefit perspective.

The NPD invited stakeholders views/comments/suggestions on the framework. The report can be access at https://ourgovdotin.files.wordpress.com/2020/07/kris-gopalakrishnan-committee-report-on-non-personal-data-governance-framework.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 Consumer Affairs released a draft of the “Central Consumer Protection Authority (Prevention of the Misleading Advertisements and Necessary Due Diligence of Endorsement of Advertisements) Guidelines, 2020”. The guidelines cover, “all types of advertising/ marketing communications regardless of form, format or medium”. It is applicable to manufacturers, service providers, as well as to advertisement agencies and endorsers of products/services.

The guidelines lay down the criteria of valid advertisement, which includes, inter alia, truthful and honest representations; not misleading consumers by exaggerating the capability or performance of the product; not suggesting that the claims made in it are universally accepted.

The guidelines permit comparative advertising if “…factual, accurate and capable of substantiation… not present a good or service as an imitation or replica of a good or service with a protected trademark or trade name”. The guidelines lay down that comparative advertisement in which the competitor is named is permitted in the interest of promoting competition, but the features of the advertiser’s products need to be specified clearly within the advertisement and the subject matter of the comparison shall not be of the nature that confer an artificial or unjustifiable advantage upon the advertiser.

The guidelines also deal with the issue of misleading endorsement by putting an obligation on the endorser of a product or service, to take due care to ensure that all descriptions, claims and comparisons, endorsed or made in advertisements, are capable of being objectively ascertained and substantiated. The endorsement shall not convey any express or implied false, misleading or deceptive representations.

The guidelines further lay down the provisions on, bait advertising, surrogate advertising, puffery, free claims, advertisements targeted at children, prohibited advertisements, disclaimers made in supporting, limiting or explaining claims made in advertisements, duties of manufacturer, service provider and advertising agency, etc.

The MCA invited views/comments/suggestions on the draft guidelines, to be submitted by October 1, 2020 : https://consumeraffairs.nic.in/sites/default/files/file-uploads/latestnews/Date_Extend.pdf.  The MCA notification itself along with guidelines can be accessed here: https://consumeraffairs.nic.in/sites/default/files/file-uploads/latestnews/Draft%20guidelines%20for%20stakeholders%20consultation.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.