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 The absence of a renewal mechanism can lead to situations where outdated trademarks continue to enjoy protections that do not reflect their current market standing.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.

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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.

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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.

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The Ministry of Electronics and Information Technology recently notified the establishment of a Fact Check Unit under the IT (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, to deal with issues regarding spreading of misinformation or misleading information regarding government business either suo motu or through a complaint. Social media intermediaries would now be required to take down information flagged as false or misleading by the Fact Check Unit, failing which the effect of the safe harbor provisions could be taken away. The author believes that such unbridled powers could be detrimental to the fundamental right of freedom to speech and expression of social media intermediaries.

Social media has become a tool for spreading misinformation. The objective of establishing a Fact Check Unit is to stifle misinformation and misleading information which could affect the public interest at large. A query can be submitted to the unit regarding any misinformation or misleading information circulated on social media. Additionally, the Fact Check Unit could take suo motu actions to avoid cases wherein no complaints are raised by the public.

It is necessary that such fact checks must be conducted by an unbiased regulator to ensure that no filters are applied to crucial information. If the Fact Check Unit is established by the Government without any supervisory authority, it could lead to a situation where any information detrimental to the government’s interest, such as criticism of government policy, may be flagged as wrong or misleading information.

The powers of the Fact Check Unit have not been defined. This increases the scope of misuse of such powers, which would hamper the interests of social media intermediaries. In such cases, the social media intermediary could also face unnecessary prosecutions. Any recourse regarding misleading or misinformation or misleading information must be within the scope of reasonable restrictions enshrined under Article 19(2) of the Constitution, which is not the case in the present scenario.

Any statutory authority must have a defined scope of work. The Fact Check Unit established by the Government relates to the “government business”. Such government business is to be decided by the Unit itself, which makes its functioning arbitrary in nature.

While the objective to establish the Fact Check Unit is desirable, the Government has not clarified the scope of its functions and powers. Thus, a Fact Check Unit functioning under the government to check information regarding the government business could have an adverse impact on the public interest at large.

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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Annual Complaints Report 2023-24 by Advertisement Standard Council of India (ASCI), is a report published in May 2024 by the Indian ad-watchdog ASCI, based on their internal monitoring system and complaints received from the public between April 2023 to March 2024. The Report highlights the trend pertaining to misleading advertisement across various sectors in India.

The Report states that ASCI received more than 10,000 complaints out of which 8,299 were analyzed. The Report flags that 81% of the overall advertisements were making misleading claims and 98% of them required some modifications as per the ASCI Code. ASCI observed that the compliance rate is low in digital ad-space (75%) in contrast to traditional print-media and TV (97%).

The Report observed that 99% of the promotions done by influencers were found to be in violation of the Influencer Guidelines, whereas 91% of the promotions done by celebrities were found to be in violation of the Celebrity Guidelines. The most misleading claims were made regarding ‘personal care’, food & beverage’ and ‘fashion & lifestyle’ products.

The most violative sector is “Healthcare” (19%) where majority of the stakeholders violated Drugs and Magic Remedies (Objectionable Advertisement) Act, 1954 which prohibits advertisement of a certain category of drugs for treating certain diseases/ disorders. This is followed by “offshore betting ads” (17%) that are maintained by foreign entities in India and are promoted by prominent Indian celebrities. “Personal care” (13%) continues to be in the top-3 list for the third consecutive year often involving influencer non-disclosure. After the COVID-19 pandemic, the “Ed-tech” sector is also on the rise, exploiting the vulnerabilities of parents and students. “Baby care” for the first time made it to the list of top-10 violators as parents are now becoming more aware about the products to be applied on their wards.

The Report highlights that tracking ads on the digital space is a tedious task as thousands of misleading ads are created every single day. However, ASCI has a vigilant screening team that scrutinizes violations using advanced online monitoring systems like ad-libraries. In addition, ASCI’s digital suo-moto initiative specifically targets misleading claims made on OTT-platforms, green-washing etc. Complaints can be lodged by the public, Industries, Consumer organizations and Govt-bodies by providing basic information via WhatsApp or on ASCI’s website. The average time taken by ASCI to adjudicate a complaint is 15 working days. The Consumer Complaints Council (CCC) comprising of 40 professionals review complaints weekly and any appeal from CCC is handled by four retired High-Court judges. Owing to the robust mechanism the overall compliance rate has improved.

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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