IPR Magazine (6)

EXPOSITOR An Initiative by Intellectual Property and Allied Rights Committee APRIL 2023 COPYRIGHT INFRINGEMENT IN CYBERSPACE School of Law, Christ (deemed to be University), Delhi NCR

Checking Online Content Piracy in the Indian 3 Trade Secrets in Business: Digital Market: Is DRM the right answer? Need for a New Regime - Ms. Pranjali Sahni - Himika Batra (Assistant Professor) (BA LL.B, 4th Year) Deepfakes’ Distress on the Copyright Regime in 4 Copyright Infringement in India Cyberspace - Ms. Arunima Shastri - Saibaa Ghazala (Assistant Professor) (BBA LL.B, 4th Year) 1 Trademark Dilution In India: 5 Copyright and Dance Moves: Issues & Challenges An Indian Perspective - Drishti Rathi - Sanskar Dubey (BBA LL.B, 4th Year) (BBA LL.B, 4th Year) 2 Analyzing the debate on fair use in Marriage Ceremonies - Himani Thareja School of Law, Christ (deemed to be University), Delhi NCR (BA LL.B, 4th Year)

6 Trademark Infringement in the 8 Trademark and Consumer Food Industry Protection - Umika Kapoor - Esha Gupta (BBA LL.B, 3rd Year) (BA LL.B, 3rd Year) 7 Intellectual Property and Sports 9 Trademark protection from Pharmaceutical Products - Jaymeet Joshi (BBA LL.B, 3rd Year) - Yashi Shukla (BBA LL.B, 2nd Year) 10 Protection of Trade Secrets under Indian Laws - Sion Vashisth (BA LL.B, 2nd Year) 11 Trademarks in the Virtual World - Veerarjun Negi (BA LL.B, 2nd Year) 12 Intellectual Property Awareness and Drug Price Caps - Shashank Solanki (BBA LL.B, 2nd Year) School of Law, Christ (deemed to be University), Delhi NCR

Checking Online Content Piracy in the Indian Digital Market: Is DRM the right answer? - Ms. Pranjali Sahni Digital rights management (DRM) is the use of technology to control and manage access to copyrighted material. It allows authors and publishers to control what users can see or do with their content. Have you noticed, you can only read your Amazon e-books via the kindle app, or that some websites do not allow you to copy-paste their content, and some applications or websites even disallow taking screenshots? These are all features that right-holders enable with the help of DRM, as a precautionary measure against potential copyright infringement of their works. The doctrine of exhaustion1 which is a well- established principle in the tangible goods industry dictates that right-holders lose control over their works after the first sale of the said works. Sec. 14 of the Copyright Act does not make any distinction between physical and digital goods; therefore, theoretically speaking, exhaustion should be applicable on the sale of digital goods as well. However, as illustrated by the examples above, through DRM, exhaustion fails to take effect in the digital market. In order to evade the doctrine which only applies if the work is sold, most transfers of digital goods in the online market take place through licensing rather than sale. In a landmark judgement, in UsedSoft v. Oracle 2, the CJEU held that a licence agreement under which the licensee receives the right to use the copy for an unlimited period in return for a one-off fee, such transaction amounts to a “sale” and involves a transfer of the right of ownership in that copy. In this manner, the CJEU attempted to demask licenses in the nature of a sale. However, a U-turn was taken, albeit on a differentiating legal point, in the Tom Kabinet case 3 where the CJEU held that the petitioner did not “distribute” the e-books, because ‘distribution’, as we understand, can only possibly apply to physical goods. For e-books or for any digital content, transfers will be governed under the ‘right to communication to the public’. Since the doctrine of exhaustion applies only as an exception to the distribution right of the copyright-holders, not on the right of communication to the public (notably, copyright law grants a bundle of rights on the right-owner),4 the question of the latter right being exhausted would not arise. The CJEU opined as such based on the reasoning that, unlike physical books, e- books do not deteriorate and are perfect substitutes for new copies. This decision (concerning e-books) was differentiated from UsedSoft (concerning computer programmes) based on the logic that computer programs are deemed much less likely to be put quickly in circulation on the second-hand market, due to their nature, and because they are governed under a specific legal regime, namely, the Software Directive. Having analyzed the EU position on the subject, it is certain that Indian courts will too have to address these issues soon, i.e., whether transfer of digital goods amounts to ‘distribution’ or ‘communication to the public’?5 Whether an e-book or video content will be given the same treatment as a computer programme?6 Nonetheless, whatever answers may be arrived at for these questions, the pertinent issue remains as to whether DRM is the correct redressal measure for enforcement of rights, since it is an intrusive and encroaching technology that even restricts fair uses,7 for instance, someone might want to download an article for private study and research but the website prohibits it.8 School of Law, Christ (deemed to be University), Delhi NCR

Deepfakes’ Distress on the Copyright Regime in India - Ms. Arunima Shastri Deepfakes are emergent works created by Artificial Intelligence that present new challenges to Copyright regime. Deepfakes are certain audio and video manipulation processed by AI through software rooted in deep neural network. Its tremendous capacity from creating memes to fake pornographic videos, to making politicians speak about something they did not, signifies the length and breadth of disaster it withholds for individuals and societies. The etymology perforates into ‘deep learning’ and ‘fake’ blurring the line of reality by way of superimpositions, merging, replacing and combining images from the data corpus available. In the year 2017, it was through a Reddit user putting fake pornographic images9 of a celebrity the mis-creation came into the light owing to further development of apps in the digital space with a better user interface to alter, swap the faces. Deepfake technology not only transgresses upon a user’s privacy and content available or one that he/she had made public on the internet but also transpires evident threats on the copyright, cyber security, right to publicity, forgery, defamation, criminal intimidation among a few. Copyright as the law passes no judgment on the use and purpose of the work created as soon as it qualifies the minimum modicum of creativity test 10. In most of the case copyright of the deepfake imagery may belong the programmer, that is, one who developed the design, trained the models and devised an algorithm, in a different case where freely available software is used to produced deepfakes, the selection, sorting of the images to uncover the deepfake may regard the human actor here as the owner of the work so created. A few measures are suitable to distinguish a creative work vs a deranged work the purpose and motive for creating a deepfake should be made identifiable at the stage of retrieval of the data from the source. The identification can be done by delving into its access taken legally or illegally. This can lead to Technological Protection Measures (TPM) based contractual breach. The reproduction rights will be able to counter if uploading of the work into a trained model is used to produce a result. In a different case if there is substantial modification done to its it enrages the adaption rights an exception to this being if the work is transformative in nature only on those account a fair use or fair dealing provision gets enabled. Therefore, to not let AI transgress the systemic produced TPM where the address of the downloaded work be accessed to check on its purpose and usage before that data is turned into a deepfake would be the most effective step in curbing the deepfakes’ distress on the Copyright regime. School of Law, Christ (deemed to be University), Delhi NCR

Trademark Dilution In India: Issues & Challenges - Drishti Rathi, BBA LL.B, 4th Year Trademark Dilution is an unauthorized use of a trademark by a third party in order to tamper the reputation of that trademark in the market. Across the globe, many countries have recognized this concept (USA, EU, Japan, etc.), however, the ingredients and penalties attached to it differs for every jurisdiction. There are two well known forms of trademark dilution- tarnishing (creating a negative impact for that trademark disrupting their reputation) and blurring (impairing the distinctiveness of another’s trademark).11 There are numerous issues and challenges posing before India The Indian courts have been vigilant to include this pertaining to the dilution laws which explicitly mentions one of the concept in the early 1990s as the erstwhile Trademark criteria as well-known trademarks. In India, there is a limited ambit Legislation (Trade & Merchandise Marks Act, 1958) and scope for recognition of well-known marks as it requires the did not enunciate any provision in this regard. mark to be known in at least one of the sectors in India which tends However, no recognizable judgment has been passed to debilitate the measures for protection of the mark pursuant to the by the courts for clearing the concept of dilution in dilution laws . Mo1r5eover, it is important to note that that are no trademark dilution. In 1994, there was a case on explicit parameters laid down in section 2(1)(zg) 16of Trademarks dilution filed before the Delhi High Court (Daimler Act, 1999 for deciding what should be a well-known trademark. Benz v. Hybo Hindustan 12), however, there was no explicit mention of the word dilution in this judgment. This therefore, leaves it to the interpretation of the courts on a case- After the enactment of the Trademarks Act, 1999, to-case basis which may lead to mixed opinions or an ambiguous Section 29(4)13of the Act enunciates the concept of understanding. Moreover, there exists some resistance between dilution for the Indian domain. However, the Sections 11 and 29(4) of the Act17as one mentions well-known ingredients and the application of the law is not very trademarks and the other mentions marks with reputation which clear till today as this provision still appears to be in a therefore leads to several inequalities between the two18. The maturing stage. vagueness of the meaning in section 11 tends to take a recourse to other sections of the act such as sections 6, 7 & 919for deciding One of the cases where certain pre-requisites of the which could be a well-known trademark. However, they are dilution concept had been discussed was “ITC v. subjective in nature leaving it to the courts to decide the Phillips Morris Products SA and ors.14”, wherein the interpretation. Therefore, it can be concluded that it is essential to Court had stated that dilution can only be said to have bring a paradigm shift in the dilution provisions in India as the occurred when the mark is a well- known mark prerequisites do not have specific and explicit parameters which is a having a repute in India and has been brought into use major hindrance for its application. The interpretation of the courts by a third party wherein it had been detrimental to the can in many cases be mixed and therefore a possible solution could distinctiveness or the repute of the mark. be an amendment to explicitly make the provisions unambiguous and specific. School of Law, Christ (deemed to be University), Delhi NCR

Analysing the debate on fair use in Marriage Ceremonies - Himani Thareja, BA LL.B, 4th Year The Act creates an exemption to the use of The Delhi Court in the matter of Phonographic copyrighted work. Conjoint reading of Section Performance Limited vs Novex communication23appointed 52(1)(za)20 and 52(1)(k)21 connotes that any artistic Prof. Arul Scaria, under Rule 31 of the IP Division Rules work used during any religious procession or 2022, as an expert in a copyright dispute, for assistance in marriage procession and related social festivities interpreting the nuances of Section 52(1)(za) of Copyright shall not be construed as infringement however, Act.However, the altercation reached no conclusion since such use shall be bona fide in nature and not for the the matter was amicably settled between the parties. purpose of profit making. The conundrum lies in Nevertheless, Professor Scaria in his report opined that construing what all does the social festivities broader interpretation of Sec. 52(1)(za) would be more include and to what extent does this exemption appropriate wherein marriage related festivities are stand ground? While, the courts were still following included within the ambit of the exemption since the narrow interpretations of Sec. 52 (za) in matters performing marriage related festivities according to one’s of fair use but the ministry of commerce and culture and tradition is a constitutional right under Article Industry in order to avoid any confusion released a 21.24The courts should construe the provision in line with notification dated Aug 27, 2019 clarifying that it is the legislative intent, international best practices and evident from the Act that the utilization of any fundamental right to Privacy.25 sound recording in the course of religious ceremony including a marriage procession and other social festivities associated with a marriage does not amount to infringement of copyrights and hence no license is required to be obtained for the said purpose.22 Previous jurisprudence on the matter presented that a general interpretation of the provision cannot be made without considering each case on factual circumstances.26The same was contradicted in a different matter where the blanket interpretation of the exception was upheld27. The dichotomy yet persists as the Delhi High court in the matter of Ten Events vs. Novex Communication i2s8currently presiding over this issue. The author believes that the report submitted by Prof. Scaria concluding the broad interpretation will have a significant impact while settling the fair use debate. School of Law, Christ (deemed to be University), Delhi NCR

Trade Secrets in Business: Need for a new regime - Himika Batra, BA LL.B, 4th Year In the era of the technological revolution, the importance of how businesses function has grown manifold. Strategies are being updated and certain secrets must be kept to ensure success in the competitive market. This information that holds commercial value is not available in the public domain and requires secrecy to be maintained so that rivals cannot use it to gain an advantage is known as trade secrets. These secrets are what makes the business unique and successful. All sectors of commercial competitiveness have Patents, trademarks, Copyright and Designs over their products but intellectual property like trade secrets make them more individualistic as compared to others.29 There are increasingly serious responsibilities on directors and corporate offices when caring for it in corporate governance. The biggest challenge for modern corporate governance is to provide inbound and outbound protection to a corporation’s property. Throughout history, trade secrets have only been In India, Section 27 of the Indian Contract Act is specifically looked at under common law but there has never been a relied upon as it imposes a restriction on a person from separate legislation. Even though India is a signatory to disclosing such information acquired at the time of the TRIPS Agreement where Article 39 deals with trade employment or through the contract and also provides secrets, but in India, they are still covered by only remedies to aggrieved parties.31There are only civil or equitable conventional judicial decisions and provisions of remedies available that seldom impose any strict liability in case contracts law, and tort law. of contravention. These include an injunction preventing third parties from disclosure, return of confidential information, and In the case of Bombay Dyeing & Manufacturing Co Ltd v. compensation or damages.32As there is no separate legislation, Mehar Karan Singh 30, The Bombay High Court gave judicial pronouncements become difficult, and courts have certain safeguards to be taken by the trade secret holder taken different stands in different circumstances. There is for the knowledge to be considered a secret. Three ambiguity and uncertainty. situations have been streamlined by courts that can lead to legal action: Even though trade secrets blend into the current context of tort law, contract law, and antitrust law, there are still several issues 1.When secret or sensitive information comes into the with its inception in the area of intellectual property rights. It possession of an employee during the course of his was required by the TRIPS Agreement required its member job and he transfers it to another person, either states to amend their laws and enact new legislation in order to carelessly or deliberately; meet the obligations. It is high time that India also enacts a new statutory law to protect trade secrets and confidential 2.When an unauthorized person incites an employee information while also amending the current Competition Act to provide such secret or sensitive information; and framework to avoid misappropriation and enforcement of confidential information. 3.When a provision of a license is breached by the licensee for the use of know-how, either expressly stated or inferred, to keep that know-how secret and fails to do so. School of Law, Christ (deemed to be University), Delhi NCR

Copyright Infringement in Cyberspace - Saibaa Ghazala, BBA LL.B, 4th Year Choice of Law and Forum The Internet’s rapid growth has given owners of intellectual property a whole new set of issues to deal with. In case of an infringement, the owners of copyright initiate lawsuits before the courts according to the territorial competencies, but how does one balance the occurrence of the violation outside the jurisdiction of adjudication? Initially, the public’s lack of access to technology prevented them from copying, but when new technologies emerged, an average person found themselves unexpectedly photocopying articles, taping music, and recording their favorite television programmes. Only infringement to computer softwares is covered by the Indian Copyright Act of 1957. Sadly, there is no indication of online piracy in the activities taking place all over the world. The 2012 Amendment Act also regressed and omitted any references to the internet or digital technology. The Act’s flaws give rise to a number of legal problems. The WIPO Copyright Treaty, WIPO Performances and Phonograms Treaty, and the BERNE Convention are similarly considered as being silent when it comes to deciding the jurisdiction in cases of copyright infringement. The question of whether an Internet Service Provider should be held accountable for a subscriber’s copyright violation even while the ISP was not aware of the subscriber’s behavior has become relevant in this dispute. According to Section 79 of the Information Technology Act, 2000 3,3a subscriber who can demonstrate that an offence or contravention was committed without his knowledge or that he took all reasonable steps to prevent the offence or contravention from being committed will not be held liable under the said Act. The Indian Copyright Act stipulates that the violation or aiding of the violation must be done “knowingly” by a person when characterizing a copyright offence. Even if the ISP is not subject to punishment under Indian law, he may still be held accountable under the national laws of other jurisdictions. Since there are networks everywhere, a communication or piece of information may pass through a number of nations before arriving at its intended location. The ISP might not be liable in the country of origin or the country of destination, but might be liable in a third country. Based on the secondary liability theories of contributory or vicarious infringement, ISPs and software developers may be responsible for copyright infringement. Direct copyright infringement must have taken place for the provider to be held accountable, and either contributory copyright infringement or vicarious copyright infringement must have occurred. In the famous ruling of Christian Louboutin v. Nakul Bajaj34, the Delhi High Court outlined specific actions taken by an intermediary that might subject it to liability for assisting intellectual property infringement. Previously, an intermediary could only be held accountable for illegal content placed on its platform if it knew specifically or actually that the content was illegal or had a fair and reasonable suspicion that it may be. However, this judgment outlined “tasks” that the intermediary undertook while acting as a platform for trade. If a couple of these tasks were also carried out by the intermediary, it would cross the line from being an intermediate to an active participant in the infringement. As stated in the ruling in Yahoo! Inc. v. Akash Arora 35, the plaintiff was within the state’s boundaries, hence the extent of jurisdiction could even be expanded. The Delhi High Court further stated that a commercial contract should be in place in order to recognize online infringement. In order to recognise modern technologies, changes are also necessary to the Indian Penal Code of 1860, the Evidence Act of 1872, and the Indian Patents Act. Any court with direct jurisdiction over the dispute may exercise its power under Section 62 of the Indian Copyright Act, 1957 36. The Information Technology Act again allows for extraterritorial jurisdiction in cases of cybercrime. According to Section 74, any offence that involves an Indian computer resource may be noted for prosecution under Indian law. School of Law, Christ (deemed to be University), Delhi NCR

Copyright and Dance Moves: An Indian Perspective - Sanskar Dubey, BBA LL.B, 4th Year The main motive of Intellectual Property law is to protect the interest and the hard work of creative people. Similarly, unique dance moves or choreography by various artist should also get protection so that their creativity and their hard work in such cases remains the same.37 Dancers and performers from all over the world have showcased their creativity and presented dance in a very creative and unique way, Michal Jackson to Shakira showed how can dance be presented in a very different and unique way and this uniqueness or exclusivity must get right to be protected. Famous choreographer and director, Remo d Souza in 2013 planned to protect his dance moves or choreography from the film ABCD. The question which the researcher wants to highlight is that does these dance moves are protected under the Indian Copyright Act. 38 The word choreography has been defined under the copyright act defines “dramatic work” as per section 2(h) of the copyright act, this act extensively elaborates that the “dramatic work” includes any piece of recitation, “choreographic work” Also, the definition of copyright work under Section 14(a) includes the protection of “dramatic work”. So, when section 14(a) r/w section 2(h) of the copyright act highlight that the choreographic work are copyrighted work and must be protected. Not only this but when this section 2(h)39defining dramatic work (including the term choreography) is read with section 13(1)(a)40of the copyright act which elaborates upon the items on which copyright is granted including the term dramatic work. So, this clearly states and highlights the fact that the copyright act provides protection of copyright to dramatic work which includes choreographic work, and hence, choreographic work could be granted copyright protection if claimed. The current challenge which may be faced or being faced by the copyright granting authority is the question of originality once the choreography is in public space it is difficult to grant copyright protection considering the original work in that not only this but the other issue face is the copyright is if granted on a dance under the choreographic work the portion where the music only place and the dance doesn't say any tale or expression that portion can’t be considered as the choreographed portion. These portions can be included under the definition of theatrical work4. 1In the case of the Academy of General Education, Manipal, and Anr. v. B. Manini Mallyaṅ42This case highlight that Section 2(h) of the Copyright Act of 1957 deals with the protection of a new version of ballet dance as dramatic work. The apex court of India in this case laid down that copyright for ‘dancing’ would be included as part of dramatic work and not part of literary work. Choreographic work is a creative art form that is protected under the copyright act. Dancers in the current time use their dance creativity for commercial purposes too which makes it more important to protect this under IPR. Also, protection of choreographic work will come under the Performer's right43as the term performance mentions the term dancers. Under Section 2(qq)44of the copyright, the act defines about \"performers\" and also includes the word “dancers” in its definition, this clearly shows that the copyright considers these dancers as performers under the Copyright act.. School of Law, Christ (deemed to be University), Delhi NCR

Trademark Infringement in the Food Industry - Umika Kapoor, BBA LL.B, 3rd Year Trademark is the value for the brand’s name commonly used in conjunction, stated by the Court. The Court observed that both the products have the which has certain reputation, i.e goodwill in the same deep red colour and texture, furthermore the structures of the bottles is not materially different. The market among customers and competitioners and court also noted that the trademark \"ROOH AFZA\" has been used in respect of the respondent’s product. is thus the rootcause for the credibility of the Thus, It was held by Delhi High Court that Rooh Afza's Trademark Has Acquired Immense Goodwill, businesses. Trademark is an indispensable factor Requires High Degree Of Protection. and thus, usually taken into consideration when it The most common reason a trademark is violated is usually to deceive customers by creating misleading comes to buying a food product as for a customer, confusion in the customer’s mind so as to utilise the competitor's brand name to increase their own sales and quality is of the biggest importance which is profit from the reputation which the brand have worked so hard to establish over the years. According depicted through trademark ensuring to Section 28 of the Trademark Act, the goal of trustworthiness among its buyers.45 registration is to give the person who registered the trademark an exclusive right, which means that it is to As health and safety are values leading to wellness the exclusion of everyone else. which no one likes to compromise on, and since the importance of health had arosen during In conclusion, a trademark is ought to be reliable COVID-19, the quality, nutritional content of because it represents a company and is accountable for food is even more important other than its price improving qualities. Food companies establish the when it comes to the food sector. The intangible progressions which are represented by their trademarks asset of goodwill of a brand is in the unwavering or logos by taking into consideration the preferences belief of the consumers for the quality of its and tastes of their customers. products. Because they think this brand will be maintaining standard quality, which is why many Therefore, in trademarks, the brand names, logos, individuals would choose an expensive burger slogans and layouts must be protected. These should be from a Mc Donald’s over a cheap burger from a distinctive, not descriptive in nature, and not be likely neighbourhood eatery. to confuse consumers with other brands. Recently in the Hamdard National Foundation (India) & Anr v. Sadar Laboratories Pvt Ltd.46 (Rooh Afza v Dil Afza), the case of trademark infringement where the word ‘Afza’ is common. It is also not difficult to conceive that a person who looks at the label of Dil Afza may also relate to the label of Rooh Afza. Moreover, the meaning of the words ‘Rooh’ and ‘Dil’, when translated into English, are School of Law, Christ (deemed to be University), Delhi NCR

INTELLECTUAL PROPERTY & SPORTS - Jaymeet Joshi, BBA LL.B, 3rd Year Sports have always pulled people in, and from a simple love it has grown into a multi-billion dollar industry with countless trading prospects. Both players and fans have formed communities around sports, which also serves as a global economic engine by creating jobs. Due to its global scale, the sports sector has played a significant role in fusing different cultures and economies during the past century. 47 The global economy is being increasingly impacted by the sports business, which also mobilises resources, invests in public infrastructure, and creates jobs. As sports have been increasingly corporatized and are no longer considered legitimate forms of entertainment, money has come to play a significant part in all athletic events. In the world of sports, the reach of intellectual property rights is crucial. Virtually every aspect of the sports sector is protected by intellectual property rights. Sports serve as a showcase for the use of intellectual property, which also drives the industry of sports. Through a symbiotic and efficient intellectual property system, the World Intellectual Property Organization (WIPO), a specialised organisation of the United Nations with headquarters in Geneva, supports innovation and creativity for the economic, social, and cultural growth of all nations. The major purpose of intellectual property is to safeguard the Intellectual property (IP) is demonstrated in sports. Patents mercantile community, and it is typically associated with the promote technological advancements that lead to improved manufacturing business. In addition to facilitating the protection athletic goods. The distinctive identity of events, teams, and of intellectual property such as patents, copyrights, trademarks, their clothing is influenced by trademarks, brands, and and designs globally, WIPO works to guarantee that the sports designs. The money required for broadcasters to invest in industry benefits from a broad and deep base. For sports teams and the pricey venture of broadcasting sports events to fans all organisations, intellectual property has a financial value and over the world comes from copyright-related rights.48 IP includes a variety of intangible assets protected by copyright, rights serve as the foundation for licensing & merchandising trademarks, and designs. Intellectual property rights like agreements, which generate profits to aid in the growth of copyrights, trademarks, and designs have grown to be quite the sports sector. Trademark, licensing, franchising, valuable in the world of sports. The strategic application of copyright, & other fundamental IPR-related issues are all intellectual property rights in the sports sector has enormous brought up by commercial sports. These intellectual potential and can promote economic growth in a variety of ways. property rights necessitate that they be protected at all IP rights can effectively improve a nation's reputation through the sporting events, including the one stated above. sale of sporting equipment and increased international trade. Therefore, a comprehensive legal contractual agreement must be created to protect all types of intellectual property connected to athletic events, athletes, etc. in order to preserve such IP rights. The sports sector has several different ways to make money. In order to develop Indian sport and culture to international standards, the Indian government must strongly support and promote them. School of Law, Christ (deemed to be University), Delhi NCR

TRADEMARK & CONSUMER PROTECTION -Esha Gupta, BA LL.B, 3rd Year Consumer Protection Act, 201949has been to effect to Sometimes we see like change of spelling in safeguard the interest of various Consumer of their brand name products. For example, sometimes interests and rights and duties. As earlier we know LAKME products get sold by name of the concept was of Caveat Venditor and then came LACME and consumers may not notice it and with Caveat emptor but both of them are of equal gets cheated due to their carelessness. But all importance. Now coming to the trademark its the this can be rectified with Consumer education unique identification for the products which can help about Trademark and Consumer laws and the customers for making their rationale choice for same Consumer Protection day has been the product. But as it is said everything comes with observed by Govt of India on 24 Nov every its pros and cons so it is as we know from our day to year which is also \"JAGO GRAHAK JAGO\". day life examples that if some manufacturers is School textbooks too should get included basic getting renowned with their products then there will laws to teach students of there basic human be 10 more new persons will enter the market with rights which can help them in future for so the same name and try to cheat with customers since they purpose. don't have any trademark and do so just to confuse the customer with his/her decision. And this kind of practice has more commonly got noticed in small business sector like some sweet shop, food shop , clothing dupe etc. But the thing we need to understand is about making consumers educated of their rights in order to make them realise how their rights may get infringed that too due to their carelessness. And in return offender can easily escape the liability on the grounds that Consumer was at fault and he has clear mentioned that he is not having trademark. School of Law, Christ (deemed to be University), Delhi NCR

TRADEMARK PROTECTION FROM PHARMACEUTICAL PRODUCTS - Yashi Shukla, BBA LL.B, 2nd Year Branding of Pharmaceutical Products: A new pharmaceutical product's introduction to the market can be an expensive and drawn-out procedure. A pharmaceutical firm will need an affordable and effective trademark registration approach to guarantee a successful launch. This covers both internal and external operations. Companies frequently must rely on third parties to assist them in navigating the regulatory process. Pharmaceutical product trademarks are intended to reduce consumer confusion and assist healthcare professionals in identifying the appropriate drug. A strong brand enables businesses to incentivize investment in new product research and development. A strong brand also fosters customer loyalty. Furthermore, when a product is off patent, a strong brand cultivates an appealing image that helps drive sales. This assists manufacturers in generating a profitable revenue stream after patent rights expire. As a result, pharmaceutical brand trademark protection can be extended globally through the filing of Madrid Protocol International Trademark Applications. Pharmaceutical trademarks are divided into two categories: word marks and device marks. Drug names are protected by word marks, whereas product logos and packaging are protected by device marks. Both types of marks are frequently used together, and both are required for a successful pharmaceutical product. A strong international trademark can help drive sales and encourage manufacturers to continue developing new medications, whether a pharmaceutical product is on or off patent. It also assists consumers in avoiding common errors when selecting medical products. Pharmaceutical Trademark Regulations: The pharmaceutical industry is heavily regulated. Pharmaceutical firms need to have a branding strategy in addition to adhering to legal standards for their products. The goal of trademark branding is to raise consumer awareness and recognition while providing an image that conveys trust and quality in a way that entices them to purchase the product. Pharmaceutical products are eligible for trademark protection. Trademarks are used to protect brand identity and can be registered with the appropriate Trademark Office. Trademarks also prevent passing off, which means that a product that resembles another but has different branding will not be confused with it. Pharmaceutical Trademark Filings: Among the top 20 Madrid applicants were five pharmaceutical companies, four personal care companies, three technology or consumer electronics companies, two automotive companies, and two gaming companies. In 2021, 15 of the top applicants were companies with headquarters in Europe. Four of them were in Asia, and two were in North America: Apple, a technology company, and Bath & Body Works, a retailer. When the analysis is expanded to include the top 100 candidates from Madrid, it becomes clear that 59% of them were from Europe, 22% were from Asia, 15% were from North America, and 2% were from the LAC region and Oceania. These top candidates submitted a total of 4,300 applications. The fact that this only accounts for 6% of all Madrid applications submitted in 2021 (unchanged from 2020) illustrates how widely the Madrid System is utilised by applicants.50 School of Law, Christ (deemed to be University), Delhi NCR

Protection of Trade Secrets under Indian Laws - Sion Vasisht, BA LL.B, 2nd Year While several books are written every year only a India is a part of Trade Related aspects of intellectual handful become a part of New York best-seller list. New property(TRIPs) which creates certain obligations on the York Times has established that they will not release member countries. The member countries are duty- their definition of a bestseller to the public and have bound to create minimum standards of protection, labeled those parameters as Trade secrets.51Well what are though the legislation can be created in their own trade secrets? Trade secrets can be understood as secrets unique manner.55 Under the Indian laws there is no that are maintained in a business to give them the specific legislation for trade secrets, though trade secrets competitive edge. The purpose of this article is to have been given recognition under different frameworks understand what trade secrets are and why they are like the Indian Contract act 1872 and other intellectual important. This article will further look into trade secrets property laws. Indian courts have however held trade from the perspective of Indian laws, the main focus of secrets in the same regard as confidential information, this article is to understand how the Indian legal system providing them status of protection under the Indian has accommodated the concept of trade secrets; and laws.56 There have been previous attempts at creating under what laws are trade secrets governed. uniform laws for protection of trade secrets like the National Innovation act, 2008 which specifically Trade secrets can be understood as information that is mentions confidentiality and allows the parties to kept as secret in a business and is crucial for the survival maintain confidentiality through agreed terms and of the business.52The formula through which Coca-Cola conditions which would further prevent is manufactured can be classified as a trade secret since it misappropriation.57While this was a step in the domain provides a competitive edge to the organization.53 Trade of trade secrets and maintenance of confidentiality, it did secrets can be defined as that information that is of a not come into existence. Another attempt was aimed at confidential nature i.e., known to a limited group of creation of a more comprehensive intellectual property people. For information to be classified as a trade secret it rights policy i.e., National Intellectual Right Policy, has to have certain elements. The World Intellectual 2016. The main objectives of this policy was to Property Organization or WIPO has defined parameters strengthen the mechanism of intellectual property rights for information to qualify as trade secrets which are as a whole. One of the main goals was to create strong given below- and effective intellectual property rights laws which would balance interests of all the concerned parties. commercially valuable because it is secret, Though this policy was discussed, there was no real be known only to a limited group of persons, and implementation.58 be subject to reasonable steps taken by the rightful holder of the information to keep it secret, including So to conclude we have seen that trade secrets can be the use of confidentiality agreements for business understood as confidential information that gives a partners and employees.54 business competitive edge. As India is a part of the TRIPs agreement, attempts have been made to create a uniform legislation, but they have been unsuccessful due to various complications some of which can be seen in Niranjan Shankar Golikari v. Century Spg. and Mfg. Co. Ltd. While the Indian laws do meet the requirement of the TRIPs agreement and provide recognition and protection to trade secrets; there is still a need for a uniform legislation and formal laws that will ensure that trade secrets and businesses are protected in the market. School of Law, Christ (deemed to be University), Delhi NCR

Trademarks in the Virtual World -Veerarjun Negi, BA LL.B, 2nd Year The “metaverse” is upon us, and it is forecasted to impact how The Metaverse 59 combines the elements of social media, online businesses operate and how brand names are protected. An gaming, virtual reality, augmented reality, and blockchain to allow entire virtual world has opened for business and is quickly users to interact with one another using avatars. It is expected to expanding. This virtual world has its own marketplaces for expand in size, providing users with varied environments to play, goods and services, just like we see in the real world, except work and socialize. Its usage is not just for people but also for brands to they are digital. For example, luxury brands like Balenciaga help them engage with their customers and market their products and are offering simulated 3D clothing for avatars, and healthcare services. For instance, brands can advertise in the Metaverse or even providers are innovating how they conduct telemedicine to have customers browse and buy products. These virtual worlds also include virtual healthcare appointments. As this new frontier allow users to buy and sell branded, digital merchandise. When it opens, businesses are filing trademark applications that cover comes to trademarks, there are only so many words, letters, symbols, virtual goods and services to secure and protect their brands in and concepts for new businesses to use when developing their brands. the virtual world. Goods and services are already being offered Accordingly, trademarks can be a rare asset, just like gold. Trademarks virtually. However, the virtual world is about to get a whole protect the identity of a company and the reputation of its brand, lot bigger. including in the Metaverse, by keeping imitators at bay. The Facebook recently announced it would be changing its name trademark registration protects the owner and legally recognizes the to Meta Platforms Inc., or META for short. The CEO of company, thereby safeguarding the company’s interests. Facebook, Mark Zuckerberg, is leaning into what is referred to as the “metaverse,” stating in a recent rebranding As a result, the registered trademark’s owner will have exclusive rights announcement, “Over time, I hope we are seen is a metaverse to use the trademark and access essential legal tools to prevent it from company.” The Metaverse is the next iteration of the internet, being used illegally by other entities. With supply chain disruptions which combines elements of both physical and virtual worlds, and the general acceptance of virtual work and entertainment spaces including an online economy and digital assets. Consumers due to the COVID-19 pandemic, businesses are looking to the virtual will be able to access this metaverse by way of virtual reality world as a way to raise their profiles and stay ahead of the curve in the using headsets or augmented reality through their smart digital age. Securing trademark protection in the virtual world also devices. Spaces in the metaverse will mirror our real-world helps to prevent unlicensed use by third parties and can increase the experiences, except we will interact using avatars. It sounds value of your business. Acquiring intellectual property on virtual like science fiction, but it is the reality of our evolving digital goods and services is a way to monetize and leverage existing brands age. So much so that businesses are taking stock in this or develop new brands to offer products and services to consumers marketplace by expanding their trademark portfolios to cover wherever they may be located. The aspects of the Metaverse continue virtual goods and services. to evolve at a rapid pace. It is challenging to develop a corporate strategy in such a volatile environment, characterized by rapid growth and new entrant innovation.60 The risks and costs of engaging early and consistently in the development of the appropriate intellectual property, developing hypotheses about future business models, and identifying ecosystem partners and collaborators are, on the other hand, relatively low. The asymmetrical risk of being left behind justifies the modest initial investment required to get started and explore this new digital landscape. Brand owners who want to succeed in the Metaverse should think about intellectual property ownership and the risks and benefits that come with it. School of Law, Christ (deemed to be University), Delhi NCR

- Shashank Solanki, BBA LL.B, 2nd Year Intellectual property rights (IPR) are ideas, inventions, and creative expressions that have a public amenability to bestow the status of the property. IPR grants the formulators or generators of that property certain exclusive rights in order for them to reap marketable benefits from their creative sweats or characters. There are several types of intellectual property protection, like patents, brands, trademarks, etc. A patent is recognition for an invention that satisfies the criteria of global novelty, non-obviousness, and artificial operation. IPR is a prerequisite for better identification, planning, The facilitation of domestic exploration and development (R&D), commercialization, and picture, and thereby the protection of regulation of intellectual property programs, development of invention or creativity. Each agency should evolve its own general medicines, and salutary government approaches have been IPR programs, operation style, strategies, and so on depending the propulsion mediums driving the pharmaceutical industry's on its area of specialty.61 Pharmaceutical assiduity is currently prominence as an important player on the world chart. India is developing an IPR strategy that will have a better focus and now the leading provider of general medicines in the world. approach in the future. The Indian pharmaceutical industry While the Indian health sector has limited health insurance content has witnessed exponential growth and transition in the last and consumers pay for health care above and beyond their charges, two decades. This artificial sphere is a technology-and the rise in the cost of medicines acts as an impediment. invention-driven space. Encyclopedically, the Indian pharmaceutical industry ranks third in terms of volume and Compulsory Licensing guarantees serious and cheap costs of fourteenth in terms of value. There are several types of medications on the lookout and spite of the fact that studies2 show intellectual property protection, like patents, brands, that cost covering for broad periods makes an unfavorable impact trademarks, etc. A patent is a recognition of an invention that on the stock of the medications which further prompts a satisfies the criteria of global novelty, non-obviousness, and diminishing in deals of cost controlled items and are of below artificial operation. IPR is a prerequisite for better quality. advertisement of impulses for medicine, the discovery of identification, planning, commercialization, and picture, and orphan conditions (orphan medicines), and their manufacture A thereby the protection of invention or creativity. strong healthcare structure that includes bulk purchasing of Pharmaceutical assiduity presently has an evolving IPR essential drugs, healthcare support, and public insurance schemes strategy that will have a better focus and approach in the will reduce the need for tone-deaf medicine price regulation. However, it'll induce an advanced price value on the investments coming period. The Indian pharmaceutical industry has and quicken the pace of invention if the pharmaceutical company's witnessed exponential growth and transition in the last two intellectual property (IP) is well managed. decades. Encyclopedically, Indian pharmaceutical industry strength stands third in the world in terms of volume and School of Law, Christ (deemed to be University), Delhi NCR fourteenth in terms of value.

REFERENCES 1.The Copyright Act, sec. 14(a)(ii). 37. K. Krakower, “Finding the Barre: Fitting the Untried Territory of 2.UsedSoft GmbH v. Oracle International, Case C-128/11. Choreography Claims into Existing Copyright Law,” Fordham Intellectual 3.Nederlands Uitgeversverbond and Groep Algemene Uitgevers v. Tom Property, Media and Entertainment Law Journal, vol. 28, no. 3, p. 671, Jan. 2018. Kabinet Internet BV and Others., Case C-263/18. 38. Codingest, “COPYRIGHT OVER DANCE CHOREOGRAPHY,” 4.The Copyright Act, sec. 14. Sonisvision.https://www.sonisvision.in/blogs/post/copyright-over- 5.The Copyright Act, sec. 2(ff). dance-choreography (accessed Jan. 18, 2023). 6.The Copyright Act, sec. 2(ffc). 39. Copyright act 1957. 7.The Copyright Act, sec. 52. 40. Copyright act 1957. 8.The Copyright Act, sec. 52(1)(a)(i). 41. F. Sparshott, “On the Question: ‘Why Do Philosophers Neglect the 9.Oscar Schwartz, You thought fake news was bad? Deep fakes are Aesthetics of the Dance?,’” Dance Research Journal, vol. 15, no. 1, pp. 5– 30, 1982, doi: 10.2307/1477691. where truth goes to die, The Guardian (Nov. 12, 2018), 42. “Academy Of General Edu.,Manipal & .vs B.Malini Mallya on https://www.theguardian.com/technology/2018/nov/12/deep-fakes- 23 January 2009.” https://indiankanoon.org/doc/184940/ (accessed Jan. fake-news-truth. 18, 2023). 10.Barbara Taylor Bradford v. Sahara Media Entertainment Ltd, (2004) 43. G. link, Facebook, Twitter, Pinterest, Email, and O. Apps, “The I.L.R. 1Cal 15; Syndicate of The Press of The University of Performer’s Right under the 2012 Act.” Cambridge on Behalf of The Chancellor, Masters and School v. B.D. https://copyright.lawmatters.in/2012/06/the-performers-right-under- Bhandari & Anr., 2011 (47) P.T.C. 244 (Del); The Chancellor 2012-act.html (accessed Jan. 18, 2023). Masters And Scholars of The University of Oxford v. Narendra 44. Copyright act 1957. Publishing House and Ors., 2011 (47) P.T.C. 244 (Del). 45. Gibson, J.,&Chow,R.(2017). Protecting your Food Brand: Trademark 11.Anuttama Ghosh & S.M. Aamir Ali, Dynamics of Trademark Registration and Beyond. Canadian Food Law and Policy Conference. Dilution: Issues and Challenges in India and USA, 8 KSLR 16, 17-18 http://foodlaw.ca/protecting-your-food-brand-trademark-registration- (2020). and-beyond/ 12.Daimler Benz v. Hybo Hindustan AIR 1994 Delhi 239. 46.CS (COMM) 551/2020. 13.Trade Marks Act, 1999, No. 47, Acts of Parliament, 1999 (India). 47. https://www.theglobalipcenter.com/report/sports-and-ip/. 14.ITC v. Phillips Morris Products SA and ors 2010 (166) DLT 177. 48. https://ip.com/blog/how-intellectual-property-rights-impact-sports/. 15.T.G. Agitha, Trademark Dilution: An Indian Approach, 50 ILI 339, 49. Consumer Protection Act, 2019, No. 68, Acts of Parliament, 2019. 345 (2008). 50.https://patentbusinesslawyer.com/trademark-protection-for- 16.Trade Marks Act, Supra Note 13. pharmaceutical-products/. 17. Ibid. 51.VETHAN LAW FIRM ,https://info.vethanlaw.com/blog/trade- 18.Anuttama, Supra Note 11. secrets-10-of-the-most-famous-examples (last visited on Jan. 3, 2023). 19.Trade Marks Act, Supra Note 13. 52. Hana Onderkova,A short introduction to trade secrets in 20.Sec. 52, cl. 1, subcl. (za), Acts of Parliament, No. 14 of 1957, 1957 India,EUROPEAN COMMISSION,(5 November (India). 2021),https://intellectual- 21.Sec. 52, cl. 1, subcl. (k), Acts of Parliament, No. 14 of 1957, 1957 propertyhelpdesk.ec.europa.eu/newsevents/news/short-introduction- (India). trade-secrets-india-2021-11-05_en. 22.Ministry of Commerce and Industry, No. 10-26/2019-CO, 53. JAKE FRANKENFIELD,Trade Secret: Definition, Examples, Laws, Copyright Office, Dated: Aug 27, 2019, Vs. Patent,INVESTOPEDIA,(Jan. 5, 2023 3:00 PM),trade-secret.asp. https://copyright.gov.in/Latest_Notice37.aspx Last accessed: 06 Jan, 54. WIPO, https://www.wipo.int/tradesecrets/en/,(last visited on Jan 5, 2023. 2023). 23.2022 SCC OnLine P&H 1105. 55. World trade organization,intel2_e.htm,(last visited on Jan 7, 2023). 24.Arul George Scaria, Reading Sec. 52(1)(za) of the Copyright Act 56. Shrivatsav N,Protection of Trade Secrets Under Indian Law, Legal 1957: Report of the Independent Expert appointed by the Delhi services India e-journal,(Jan 7, 2023, 9:00 High Court in Phonographic Performance Limited v. Lookpart PM),https://www.legalserviceindia.com/legal/article-310-protection-of- Exhibitions and Event Private Limited, Dated: 11 Oct, 2022. trade-secrets-under-indian-law.html. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4244428. Last 57. Ravindra Chabba, Inadequacy of trade secret’s protection laws in accessed: 10 Jan, 2023. India and legal regime existing in 25. Ibid. U.S,http://www.manupatra.com/roundup/369/Articles/Inadequacy.pdf. 26.Novex Communication Private Limited Vs. Union of India, CWP No. 58. R Vigneshwaran, An Alarming Need for Trade Secret Legislation in 28758 of 2019 (O&M) India,AJMR 95,2 27.Phonographic Performance Limited Vs. State of Punjab, CWP No.7772 (2018),https://amity.edu/UserFiles/admaa/5a140Paper%207.pdf. of 2011 (O&M) 59. Kathryn Park, Trademarks in the metaverse, Wipo Magzine, (9:55 14 28.Ten Events vs. Novex Communication, CS Comm 42/2021. th April 2023), 29.S.K Verma, Legal protection of Trade Secrets and confidential https://www.wipo.int/wipo_magazine/en/2022/01/article_0006.html. information, Journal of the Indian Law Institute, 336, (2002). 60. Jatin Dhawan, Trade Marks and the Metaverse: An Indian Perspective, 30.Bombay dyeing & Manufacturing Co Ltd v. Mehar Karan Singh Lawyerd, (9:14 PM 14 th April 2023), (MANU/MH/0955/2010). https://www.lawyered.in/legal-disrupt/articles/trade-marks-and- 31.Sonia Baldia, Of shoring to India: Are Your Trade Secrets and metaverse-indian-perspective/. Confidential Information Adequately Protected?, Mayer Brown Bus. & 61. D.P.C.O, para19 (2016). Tech. Sourcing Rev., Mar. 1, 2008, at 10. 32.Deepak Gogia, Chakravarty’s Intellectual Property Law 753 (2010). School of Law, Christ (deemed to be University), Delhi NCR 33.The Information Technology Act, sec. 79. 34.CS(COMM) 344/2018. 35.78 (1999) DLT 285. 36.The Copyright Act, sec. 62.

Intellectual Property & Allied Rights Committee Campus Dean & Director Dr. Fr. Viju P Devassy Campus Administrator Fr Sunny Joseph Head of Department Dr. Fincy Pallisery Faculty Editors Ms. Arunima Shastri Ms. Pranjali Sahni Student Editor-in-Chief Drishti Rathi Design Saibaa Ghazala Himika Batra Aathi Kesavan School of Law, Christ (deemed to be University), Delhi NCR