Advertisers in India are now subject to a regime of self-certification under which every advertiser is required to submit a self-declaration for every advertisement to the effect that it does not contain any misleading claims and is compliant with applicable regulatory standards of advertising. Self-certifications for radio and print advertisements have to submitted on the Broadcast Seva portal of the Government of India, and self-certifications for print and digital/internet advertisements have to be submitted on the Press Council of India’s website. While the decision is undoubtedly well intentioned, in the author’s view, the requirement of submitting a self-declaration is not fit for its purpose.

The establishment of this self-certification regime has almost no effect on the extent and nature of liability an advertiser may face, since there is no legal theory under which the submission of a self-declaration in and of itself creates or extinguishes any liability. Instead, the self-certification regime has unduly increased the compliance burden of advertisers. Advertisers need to file a self-declaration prior to airing or publishing every single advertisement. Given the volume of advertisements in the industry, this translates to a significant compliance burden. The limited benefits of the self-certification mechanism are not commensurate with this burden.

Indeed, there is currently no robust regulatory mechanism for proceeding against advertisers who air or publish false or misleading advertisements and that is the raison d’etre for the widespread prevalence of such advertisements. However, in the author’s view, mandating self-certification by advertisers is not an appropriate solution to that social problem. Instead, a better solution would be to strengthen the capacity and enforcement posture of existing governmental authorities, and establish new authorities if required, to ensure that there sustained, prompt and effective enforcement action can be taken against delinquent advertisers. 

To that end, the capacity of the newly established Central Consumer Protection Authority (CCPA) under the Consumer Protection Act, 2019 may be enhanced, to enable it to effectively pursue more actions against delinquent advertisers. Misleading advertisements are fundamentally a wrong against consumers. Therefore, the CCPA, as a specialized consumer regulator, is particularly well placed to take on the responsibility of enforcing fair advertisement standards.

The continued proliferation of misleading advertisements stems not from the absence of self-declarations, but from a lack of prompt and credible regulatory consequences. A self-certification regime that does not substantively alter an advertiser’s liability offers a limited deterrent effect. It merely introduces procedural complexity without addressing the underlying enforcement inadequacies. 

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

The Bureau of Indian Standards (BIS) under the supervision of the Ministry of Consumer Affairs, Food and Public Distribution, published the draft guidelines, which aims to protect consumers from potential counterfeiting in the fast-growing digital shopping industry.

The guidelines require E-commerce entities to ensure that counterfeit, fraudulent or illegal products are not listed or sold or offered for sale by the seller on the e-commerce platform. In this regard, the guidelines require disclosure of relevant information on the reporting and returning mechanism for counterfeit products which may require extended timelines beyond the generic return timelines stated above.

The guidelines shed light on detailed Anti-Counterfeiting measuresincluding well-defined mechanism for rights owners to report instances of violation of their intellectual property rights, which shall include the provision of requisite information pertaining to their rights, and any other evidence of the alleged violation; well-defined mechanism on the platform for consumers to report instances of receipt of counterfeit products to the e-commerce entities; well-defined process to investigate the counterfeiting allegation, and provide a preliminary response to the rights owner within the timeline as set out under applicable law; list of appropriate action(s) that may be taken by the e-commerce entity, at its sole discretion, in accordance with applicable law; and  an appeals process, by which an aggrieved party may communicate with the e-commerce entity on any reservations it may have on actions taken on the platform on the basis of the rights owners report on counterfeiting.

The guidelines further state that where an E-commerce entity receives a report/complaint from a Rights Owner, it shall ensure that the same is immediately forwarded to the concerned seller as well as authorities on its platform within 48 hours and the evidence of such communication is shared with the rights owner. Further, upon receiving a complaint from a consumer regarding the authenticity of a listed product, it shall forward the same to the seller within 48 hours and the evidence of such communication shall be shared with the consumer.

The seller shall be provided with an opportunity to respond to the complaint after which the e-commerce entity may take appropriate actions at its sole discretion. However, any e-commerce entity/ seller which explicitly or implicitly vouches for or guarantees the authenticity of the goods or services sold by it, shall bear appropriate liability in any action related to the authenticity of such good or service. These measures underscore the increasing responsibility placed on e-commerce platforms to combat counterfeiting and ensure greater consumer protection in the digital marketplace.

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

The question of whether the status of a well-known trademark should be subject to renewal is underrated but pivotal in trademark law. The author believes that the designation of a trademark as “well-known” should indeed be revisited periodically to ensure that it retains its significance and relevance in the marketplace. This perspective is grounded in the understanding that a trademark’s value is not static; it evolves with market dynamics, consumer perceptions, and competitive landscapes.

A well-known trademark is one that has achieved significant recognition and goodwill in the market, often becoming synonymous with quality and trust for consumers. This prestigious status is acquired by a brand after fighting countless legal battles over the years. However, this status should not confer indefinite protection without scrutiny. Just as consumer preferences change, so too can the relevance of a brand. For instance, a once-popular brand may lose its appeal due to shifts in consumer behavior or emerging competitors. If a mark loses its significance, it will inevitably diminish its recall value in the minds of consumers. The theory of brand recall suggests that consumers remember brands they associate with positive experiences or consistent quality. When a brand fails to maintain its relevance, it risks being forgotten or replaced in consumers’ minds by more innovative or engaging alternatives.

Current legal frameworks often grant blanket immunity to trademarks once they are declared well-known, as seen in various jurisdictions, including India. The absence of a renewal mechanism can lead to situations where outdated trademarks continue to enjoy protections that do not reflect their current market standing.

Implementing a renewal process for well-known trademarks does not undermine their value; rather, it reinforces the system’s credibility. By requiring trademark owners to demonstrate ongoing recognition and relevance, we can ensure that these marks continue to serve their intended purpose: protecting consumers from confusion and ensuring that brands uphold their reputation. Such a process could involve similar criteria to those used during initial evaluations such as market-presence, consumer recognition, promotional efforts, but with a lower threshold.

In conclusion, while well-known trademarks are invaluable assets for businesses and serve as symbols of quality and trust for consumers, they should not be granted perpetual protection without periodic assessment. A structured mechanism such as periodic renewal, to evaluate the continued relevance of these marks would ensure that only those brands that actively maintain their status are afforded its benefits. Blanket immunity should not exist forever and must be adapted to our legal frameworks to reflect the dynamic nature of markets and consumer preferences.

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

The Ministry of Information and Broadcasting (MIB) has issued the Cinematograph (Certification) Rules, 2024, through a notification dated March 15, 2024 published in the Gazette of India. These Rules replace the Cinematographic (Certification) Rules, 1983, bringing updates to the film certification regime. Key changes include the introduction of the online ‘e-cinepramaan’ portal, a revised classification and age-based certification system for films, and new fee structure for film examination by the Central Board of Film Certification (“Board”).

The Rules redefine and introduce new terms, such as a “Long Film”, now defined as a film running for 72 minutes or more [Rule 2(xi)], and “foreign films” [Rule 2(xii)], among others. The film submission process requires that submitted films be accompanied with the same language subtitles, same language audio descriptions, or same language closed captions [Rule 22(4)], with abolition of older requirements such as submitting multiple copies of synopsis, credit list, song text etc. of the submitted film.The Rules empower the Regional Officer to involve subject or language experts during the film examination process [Rule 23]. The UA (Universal Adult) certification is now divided into three sub-categories: UA 7+ (suitable for children aged 7 and above), UA 13+ (suitable for children aged 13 and above), and UA 16+ (suitable for children aged 16 and above) [Rule 23(11)(b)].

Post-certification alterations, such as the addition of subtitles, audio descriptions, or closed captions in languages other than the original film language, must be reported to the Board and must comply with the film’s certification category [Rule 31(1)].

A new priority scheme has been introduced, allowing applicants to expedite the examination process by paying three times the standard fee. This ensures the examination is scheduled within five days, subject to slot availability [Rule 33]. The Regional Officer can adjust the examination order of submitted films for applications under this scheme [Rule 37(3)]. The Rules have eliminated additional documentation requirements for foreign films, except for those specified under Rule 22(4) [Rule 21(6)].

The certification validity for films has been extended from 10 years to perpetual [Rule 29], eliminating the need for re-application. The e-cinepramaan portal has been established to facilitate the online certification process [Rule 22].

The gazetted notification is available here.

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

The practice of paying residuals to writers and performers for syndicated content has sparked significant debate, especially considering recent SAG-AFTRA strikes. While some argue that residuals are crucial to ensure fair compensation, others believe the evolving nature of content consumption necessitates reevaluating traditional payment structures. The author firmly believes that residuals should be mandatory to protect writers and performers, whose intellectual property continues to generate revenue long after the initial release.

Residuals are a critical aspect of intellectual property rights in the entertainment industry. Unlike one-time payment contracts, residuals ensure that creators and performers continue to receive a portion of the profits as their work is rebroadcast, streamed, or sold in secondary markets. This is crucial for a sustainable and equitable ecosystem for monetization of their intellectual property. Moreover, a robust residuals system can provide a more stable income for creative professionals, who often face unpredictable and unstable employment opportunities. This is particularly important for emerging talent, who may not command high upfront fees but whose work could achieve long-term success and profitability.

The counterargument often hinges on the changing landscape of media consumption. With the rise of streaming platforms and on-demand viewing, traditional models of syndication are evolving, if not changing completely. Critics argue that the concept of residuals is outdated and that new models of compensation should be explored. However, this perspective overlooks the reality that content, regardless of the platform, continues to generate revenue long after its initial release. By eliminating residuals, we risk devaluing the intellectual property of writers and performers, reducing their incentive to produce high-quality work.

Critics might further argue that mandatory residuals could burden production companies and impact their financial viability. However, it is essential to recognize that the intellectual property of the creative workforce is the backbone of the entertainment industry. Without fair compensation for intellectual property, the industry risks losing talented individuals to other fields or countries with better intellectual property protection regimes. Therefore, implementing residuals is not just about protecting individual artists but also about preserving the overall health and sustainability of the media and entertainment industry.

In conclusion, mandatory residuals in syndicated content are essential to protect writers and performers. They ensure fair compensation, promote income equality, and sustain the intellectual property of the creators and performers in the industry. As media consumption continues to evolve, so should our commitment to valuing and protecting the enduring creative intellectual property contributions of performers and creators in such media.

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