The criminalization of copyright infringement, in particular its classification as a cognizable and non-bailable offence, has been a widely debated issue over the past few years. Different High Courts have rendered varying statutory interpretations and verdicts that have been at loggerheads with one another. While the most recent stance of the Supreme Court has been that of deeming the same as cognizable and non-bailable, the author opines that this is too harsh a penalty to be imposed and can have a stifling effect on the growth of new creations.

For a law that has one of its fundamental objectives to be that of promoting and fostering creativity, the criminalization of such acts can have a clampdown on the creative process. An environment saturated with the constant fear of incarceration along with the absence of a right of bail will have the effect of instilling fear in the minds of the creator. This translates into an inability for the creator to express themself freely and can inevitably lead to self-censorship, thereby thwarting creativity.

Classification of copyright infringement as cognizable and non-bailable additionally has the potential of being misused by the government and interested private players as a means of censorship. Commonly used critique pieces such as jokes, videos, and parodies are often used to criticize the happenings and affairs of a state. However, parties against whom the criticism may be directed could passively have the power to shut down contrary opinions simply by engaging in frivolous, excessive, and unreasonable infringement claims. This results in a chilling effect on free speech which thereby affects creativity.

Further, copyright can be weaponized to vindicate non-copyright interests, i.e., interests which fall foul of the intended purpose of copyright. These interests include retaliation for some perceived wrongdoing or protection of reputation. Since there is no right to bail, it is a potential weapon of harassment in the hands of the police and shall exacerbate the cause of vulnerable groups the most. Such stringent classification, when assessed in a country such as India, where people are barely aware of the intellectual property rights vested in the works can lead to selective targeting of vulnerable groups and harassing them into silence.

Accordingly, criminalization gives rise to free speech concerns and consequently impacts creativity. This, when coupled with the threat of weaponization of copyright as a tool to silence criticism, or as means to harass the vulnerable, make a compelling argument against classifying copyright infringement as cognizable and non-bailable. The author thereby hopes for a shift towards the same.

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

Guidelines for Accessibility and Reasonable Accommodation for Persons with Disabilities (Guidelines) is a set of guidelines issued by the Office of Controller General of Patents, Designs & Trademarks (O/o CGPDTM) vide Order dated March 04, 2022. These guidelines are an attempt to align interactions of IP Offices under O/o CGPDTM (IP Offices) with the Rights to Persons with Disability Act (RPwD Act) to provide two-fold facilitation – (1) accessibility and (2) reasonable accommodation to Persons with Disabilities (PwDs) who interact and practice with the IP Offices.

By virtue of the guidelines, O/o CGPDTM takes the initiative to make ICT-related trademarks, documents, and other online facilities and systems more accessible. A nodal officer (disability) [nodal officer] has been appointed by O/o CGPDTM on a temporary basis to address the needs of agents, attorneys, and other PwDs.

According to the Guidelines, in order to facilitate accessibility, installation of screen readers; audio speakers; and braille printers at appropriate locations have been ordered. The same would also be provided on the receipt of an email by a PwD to the nodal officer seeking assistance with specific mention of the Controller/Registrar/Examiner before whom a representation has to be made. Similar facilities are also made accessible to Patent and Trademark Agents with disabilities.

As for reasonable accommodation, the Guidelines prescribe that the same would be provided by O/o CGPDTM upon a request of a PwD to the nodal officer, made in advance. The nodal officer shall also consult with the concerned Controller/Registrar/Examiner if what is requested is a reasonable accommodation. Also, while determining the most appropriate accommodation, the nodal officer shall discuss specific requirements with the requestee and also with the concerned Controller/Registrar/Examiner.

The Guidelines provide that the nodal officer may also provide sufficient time to PwDs for converting documents into accessible formats, appropriate adjournments and time extensions not exceeding fourteen days are also provided with prior consultation with the Controller/Registrar/Examiner. In case of denial of any request for reasonable accommodations, the nodal officer shall provide reasons for such denial.

The Guidelines also include a grievance redressal mechanism by way of which the nodal officer is duty-bound to address all grievances pertaining to accessibility and reasonable accommodation. Non resolvent of the same within a period of ten working days entitles the seeker to send a grievance to the O/o CGPDTM. The requisite contact details of the nodal officer (disability) and O/o CGPDTM are provided in the 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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The 161^st Parliamentary Report on “Review of the Intellectual Property Right Regime in India” recommended curtailing the time period of advertisement of a trademark application from 4 to 2 months. The author believes that a shorter advertisement period will facilitate more trademark filings.

Being a nation with a significant working population and its current standing among many countries to file a large number of trademark applications annually, India might have to ensure quick and prompt prosecution of applications through to registration. While theoretically, an application can, in the absence of objections and oppositions, attain registration within a timeframe of 7-10 months, this timeframe practically often serves as the minimum period for an application to proceed to publication in the Trade Marks Journal.

Contentious proceedings (such as oppositions) are lengthy and take a minimum of 18-24 months for their final disposal, adding another point for delay in prosecution and the subsequent issuance of a registration certificate. The entire proceeding entails the stages of submission of pleadings, evidence and scheduling of hearings before the TM Office. Delay in service of pleadings, evidence and hearing notices contributes to further delay in the proceedings and consequently, registration of the application. 

While each stage in trademark prosecution is important to ensure proper scrutiny, transparency, and justice to the parties, reducing the timeline for advertisement could serve as the first step in expedited prosecution of an application. It could also encourage proprietors to secure formal protection of their brands on the guarantee that the process will be time-bound. Start-ups would also be encouraged to protect their trademarks at their inception without worrying about the long timeframes and non-routine costs associated with requesting expedited processing. The author believes that the resultant increase in trademark filings would also have the added benefit of increased revenue for the TM Office.

Given the TM Office’s current schedule of publishing Trade Marks Journals on a weekly basis, interested parties can conduct their due diligence and monitor potentially conflicting marks within the 2 months and pursue an opposition against such concerning applications. In this regard, a 2-month period would also suffice as opposed to the current 4-month period which adds a degree of laxity to the process. The 2-month model has proved successful in several jurisdictions including in the United Kingdom, Spain, and Japan, among others, and the author believes it could also be fruitful in India.

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

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.

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