India follows the First to Use principle, therefore, use of trademarks in commerce is of utmost importance. It, thus, becomes necessary to monitor the usage of trademarks. In India, there is no mechanism to audit the post-registration use, making it possible for a trademark to be registered indefinitely without being put to actual use. The author opines that there is a need to implement a post-registration trademark audit programme.

It is well-settled that the non-user of trademark does not deserve monopoly. Otherwise, this would lead to trafficking of trademarks and be prejudicial to the interests of bonafide parties. It is indisputable that several trademarks, despite attaining registration, have not been put to actual use for some or all goods/services claimed thereunder. Such registrations, in turn, become an impediment to new legitimate applications from proceeding to registration. The ostensible and non-continuous use of a trademark can have an adverse effect on bonafide users. This also creates a space for malafide actions such as trademark squatting.

In 2017, USA implemented a similar program which proved successful. Indian Trademark Office (“TMO”) is among the first in the country to implement its services over the digital space. This provides the feasibility for adoption of this program with Artificial Intelligence to monitor and track usage of trademarks post registration in a timely and organized manner.

This program would help in expediating the adjudication of the pendency of cases at the TMO, specifically rectifications filed on the ground of non-use. It should be made mandatory for the registrant to file an affidavit of commencement of use and/or continuous use within prescribed time periods and periodically, upon attaining registration. The TMO should strictly scrutinize the evidence of use especially in cases where applications proceeded to registration on a ‘proposed to be used’ basis.

Moreover, this program would also contribute to the revenue of the TMO. The TMO may issue office actions to call upon the registrant to furnish evidence of use within a stipulated timeframe. Failing which and/or in the absence of sufficient reliable evidence, the TMO may also impose fines upon the registrant for lack of bonafide use of the trademark while directing such registration be expunged from the register or imposing conditions thereof.

The author opines that this program would effectively help in cleaning out the register and maintain its sanctity. Hence, the implementation of the post-registration audit program would prove beneficial to the interests of legitimate parties and also keep up with the objective of the trademark law for the time being in force.

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

As per the current IP regime worldwide including India, inventorship (or authorship) in case of Artificial Intelligence (AI) made inventions (or creations) vests with its inventor (or creator). Claims have been made in several countries to name AI as the inventor of inventions that are made by AI without any human intervention. This would logically require granting artificial legal personhood to AI and amending IP laws across countries including India. As like other legal entities, granting artificial legal personhood to AI results in bestowing it with legal rights and obligations. In the context of IP, the legal right confers the inventor an exclusive right for a fixed period of time that prevents others from using his invention without his consent. This allows the inventor to make returns on his invention which creates incentives for promoting further innovation (or creation). However, in my opinion, granting artificial legal personhood status to AI, which makes them eligible for inventorship status, is not necessary to further innovation, as AI systems are unreceptiveto any incentives created.

In order for an incentive to be a stimulus for further innovation, the entity which possesses the inventorship status must be receptive to the incentive that is created. Unlike other artificial legal entities like corporations, the incentives created by way of granting inventorship status for AI made inventions, can be realized by only their creator(or operator) due to the nature of complexities involved in financial operation of the AI.

While corporations function financially independent of its members, no matter the level of technological sophistication achieved by AI, it is still a product of humanswho oversee its financial aspects. For example, the costs incurred during the development, and marketing of AI made inventions are borne by its owner as AI is incapable of bankrolling these investments by itself. The returns enabled by way of grant of IPR have also to be handled by its owner due to its incapacity to operate independently.

Thus, even after the AI attains inventorship status, it still has to be controlled by humans. This means that the financial incentives will also be realized by its owner, which is anyway the case if the owner of the AI is made the inventor for the AI made invention. Therefore, in my opinion, granting inventorship to AI systems by recognizing them as artificial legal persons for the purpose of furthering AI made innovation is superfluous and unnecessary as the incentives created either way will only be realized by the owner of the AI.

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 Coronavirus Disease 2019 (“COVID-19”) has provided an impetus to certain unpopular sectors in which it has brought about unprecedented change. One such sector is the Indian market for counterfeit products. While counterfeit products have existed in our Indian markets since a long time, the spread of COVID-19 in the country witnessed an increased availability of such products. The author believes that the ongoing pandemic has indeed acted as a strong catalyst in increasing counterfeit products in the Indian market. 

The shortage of Covid-19 related necessities especially during the first two waves of the ongoing pandemic had instilled a deep-seated fear in the minds of people. This fear coupled with a strong need for protection and security led to desperate measures to procure and unfortunately, hoard most Covid-19 related necessities. The author believes that it is the ‘dire’ need of  necessities (or in most cases, anticipation of a dire need in future) that has caused the huge imbalance in the demand-supply chains across the globe. This need created opportunities for the production of essential goods that could be made readily available as the demand for such products increased. The huge demand thus led to the production of counterfeit goods by numerous local and small-scale manufacturers and businesses.

The current market scenario has been instrumental in providing opportunities to small-scale manufacturers and sellers of  goods to revive their incomes that were either stopped or significantly reduced during the nationwide lockdowns and subsequent loss of livelihoods. Small businesses have monetized on the need and fear in the minds of people  and created counterfeit products in massive numbers. Even though the gap between demand and supply might have been bridged, the aim to exploit the public at large under the garb of providing cheaper substitutes to life-saving essentials cannot be ignored. This has proved to be quite dangerous as the usage of such counterfeit goods is not effective and efficient to fight against the contagious virus and they are a threat to human health and safety.

The counterfeit goods are being sold with false claims of them being effective enough to lessen the impact of the virus or even save one from contracting it in the first place and  unfortunately, gullible customers fall prey to such false claims. Moreover, besides being sold via traditional trade channels, these counterfeit products are also being sold through e-commerce platforms in India. These platforms have made it extremely convenient for people to purchase desired quantities of such necessities from the comfort of their homes. These online markets are a breeding ground for such sellers of counterfeit products as it is easy for them to target vulnerable customers who might not be vigilant enough to check the authenticity of the source of goods being purchased by them.

It is noteworthy that these are desperate times and not every consumer is mindful to do their due diligence before purchasing essentials online. Therefore, there should be checks and compliances for essentials sold during a health crisis such as the ongoing pandemic. The lack of effective measures towards curbing the problem of counterfeit goods is even detrimental to IP rights that vests in the owners of various brands and stringent measures should be implemented uniformly across the country to safeguard the same. Therefore, the author believes that the current market scenario during the ongoing pandemic has proved to be more conducive to the manufacture and sale of counterfeit products than ever before.

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 Metaverse brings with itself a myriad of opportunities for brands in terms of marketing and branding, customer engagement and diversification, market expansion, collaborations, and even new products – all of which translates into a digital economy. While the Metaverse brims with opportunities for brands to expand and grow, the move to the Metaverse will bring novel challenges not limited to the virtual world, but ones that would impact the real-life ability of a brand to obtain, manage and protect its Intellectual Property (IP). The author believes that the influx into the uncertainty of the Metaverse(s) will embolden brands to adopt more aggressive IP policies.

The Metaverse may seem like borderless virtual worlds between which a user can move through easily, however, each Metaverse is controlled by a single entity (Provider) that designs and controls its own virtual space. Therefore, brands looking to enter the Metaverse(s) need to be meticulous with their IP licensing arrangement with the Providers. Further, given the scale of content required to make a functional Metaverse, it is certain that a large part of it would be user generated. Brands would be required to take a befitting approach towards enforcement and management in instances when their IP interacts with such user generated content, particularly, content that is infringing upon their IP rights. The sheer volume of content that would be available on a Metaverse would make detecting infringement an arduous task for brands of all sizes.

Adapting laws to the current version of the Web took decades and is a work-in-progress; navigating and setting boundaries in the interoperable and territory agnostic Metaverse(s) will be far more challenging.  This brings challenges brands will face in enforcing IP rights through laws that are limited by territoriality. Unlike with the internet, brands’ reliance on intermediaries to assist with enforcement of their IP rights may not be straightforward. The interoperability of the Metaverse would open a pandora’s box of infringing content across various Metaverse(s) controlled by different Providers. Therefore, for brands to work together with these Providers would, as a first step, require them to establish an exhaustive and definitive IP licensing arrangement with each Provider, establish IP rights (such as trademark, design registrations etc) and an adaptive IP policy.

The uncertainty of the various aspects pointed out above would affect the ecosystem of Metaverse and the opportunities of IP creation and infringement. It is likely to leave brands navigating their IP asset protection, management and enforcement through evolving jurisprudence. Therefore, brands adopting more aggressive policies to grow and protect IP is all but inevitable. 

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

Copyright Blockchained: Exploring the Possibilities and Challenges of Blockchain Implementation in the Copyright Realm is a paper published in 2021 [Mayank Tyagi, ‘Copyright Blockchained: Exploring the Possibilities and Challenges of Blockchain Implementation in the Copyright Realm’. The NUALS Intellectual Property Law Review (2021)]. The paper examines the use of blockchain technology in the creation of a more effective and transparent copyright protection and enforcement system in India. The paper surveys the functions and features of blockchain to identify its potential and the implementational challenges it can face in the realm of copyright.

The paper suggests various ways in which blockchain can be used to strengthen the copyright regime in the digital environment, A decentralized blockchain database with timestamps and records of conception and ownership of digital content is virtually impossible to tamper with, which will bring about greater transparency towards copyright ownership. Copyright owners can keep a track of all digital copies of their work on the internet through blockchain’s hash feature, which assigns unique serial numbers to each copy. Furthermore, the use of self-executable smart contracts can help copyright holders gain more control over the licensing of their work and revenue by decreasing their dependency on intermediaries, thereby saving costs in the process.

The implementation of blockchain to the Indian copyright system is, however, subject to legal and technological challenges. The paper highlights that while blockchain stores information related to copyrighted work, the work itself is still stored offline, which can lead to a conflict regarding the true ownership of the work. A mechanism to verify that the offline information matches with the data present in the blockchain is necessary. The paper suggests the need for standardization of rules with respect to blockchain to ensure an effective application of the technology. It mirrors NITI AYOG’S recommendation to supplement smart contracts with ‘real world’, traditional contractual documents to ensure legality of the former. Lastly, the paper states that the costs associated with the use of blockchain technology could be better managed with the help of pilot projects by the government to assess the public response towards the technology in India.

The paper highlights that blockchain is a dynamic technology which has already shown promising results in the area of digital finance. The benefits can be extended to the Indian copyrights system, provided that the existing legal and technological issues are dealt with effectively.

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