Journal of Intellectual Property Rights Law

Test of Graphical Representation of Scent Mark: Fit or Unfit

Sunidhi S. Rathod — 2023-11-06

The level of protection for non-traditional marks can vary widely from country to country, and businesses seeking to protect these types of marks internationally must navigate a complex web of national and international trademark laws and conventions. While U.S. trademark regulations have broadened their scope to encompass non-traditional marks like colors, scents, and sounds, international agreements and the trademark systems of many other countries tend to be less receptive to these unconventional types of marks. For example, the World Trade Organization’s Agreement on Trade-Related Aspects of Intellectual Property (TRIPS) sets out minimum standards for trademark
protection, but it does not require member countries to provide protection for non-traditional marks such as colours, scents, or sounds. Instead, it allows member countries to decide for themselves whether to grant protection for these types of marks. Even in countries that do provide protection for non-traditional marks, the criteria for registration and protection may be stricter than in the United States. For example, in some countries, registration of a colour mark may be conditional on the mark having acquired distinctiveness through use in the marketplace, meaning that the mark must have become known to consumers as identifying a particular brand or source of goods or services. Overall, the level of protection for non-traditional marks can vary widely from country to country, and businesses seeking to protect these types of marks internationally must navigate a complex web of
national and international trademark laws and conventions.

Women and IP: Accelerating Innovation and Creativity

Tanmay Bhandari — 2023-09-18

The role of women in science, technology, and entrepreneurship has transformed remarkably, marked by their resilience in breaking barriers and defying stereotypes. This essay celebrates the “can do” attitude of women inventors, creators, and entrepreneurs globally and underscores the importance of intellectual property (IP) in championing and safeguarding their groundbreaking work. Historical contexts reveal women’s historical contributions often overlooked due to limited access to education, resources, and societal support. IP emerges as a crucial tool for women, enabling ownership, funding, and recognition for their ideas and inventions. Patents, copyrights, trademarks, and trade secrets establish a legal framework, ensuring their innovation’s protection and acknowledgement. IP’s significance in women’s innovation manifests in several ways. It grants due recognition,
enhances self-esteem, and inspires others while also facilitating economic empowerment by providing opportunities to monetize innovations. Global outreach becomes feasible, paving the way for international business expansion. Collaboration is fostered, enabling resource sharing and enhancing community support among women entrepreneurs. Remarkable women across diverse fields exhibit the transformative power of innovation. From Parminder Lally’s patent expertise to Abhilasha Niroola’s legal prowess, Kiran Mazumdar-Shaw’s entrepreneurship, Sheryl Sandberg’s leadership, Reshma Saujani’s advocacy, and Dr. Roberta Bondar’s scientific accomplishments. These women stand as inspirations for future generations. Educational institutions play a pivotal role in fostering innovation among women. By emphasizing STEM education, promoting entrepreneurship programs, and facilitating mentorship and collaboration, institutions empower women to thrive in traditionally maledominated areas. However, the Indian IP system faces challenges like limited awareness, complex procedures, and enforcement issues. Initiatives like awareness campaigns, simplified procedures, IP facilitation centers, financial support, networking, and gender-inclusive policies are addressing these challenges. By further refining the IP landscape and supporting women’s contributions, India can truly harness the spirit of its women innovators, propelling the nation towards greater heights of creativity and success.

The Secret Behind Trade Secrets

Mrunmai Pimparkar — 2023-11-06

This paper analyzes the significance of trade secret protection in intellectual property rights (IPR) and examines the legal position of trade secrets in India and abroad. Trade secrets are vital assets for businesses and provide them with a competitive edge. This is highlighted by showing the change that trade secret protection can bring to MNCs in this age of global trade and commerce. This paper emphasizes the importance of trade secret protection and the challenges associated with safeguarding them. It analyzes the existing legal framework for trade secret protection in India and highlights the defences available for disclosing trade secrets, including general knowledge, parallel development, reverse engineering, and innocent acquisition of information. The paper suggests measures that
businesses can adopt to protect their trade secrets, such as non-disclosure agreements (NDA), awareness campaigns, compulsory registration, recognition by statute, validating reasonable noncompetition agreements, and changing the draft of Sections 12(4) and 13(3) of the proposed National Innovation Act. The paper recommends strengthening the legal framework for trade secret protection in India to prevent misappropriation and promote innovation and economic growth. Overall, the paper stresses the significance of trade secret protection and the need for an effective legal framework to protect the interests of businesses. It proposes suggestions that can enhance trade secret protection in India and promote a culture of innovation and growth. In short, the paper emphasizes the need for robust trade secret protection and a better understanding of the legal framework to
prevent trade secret misappropriation. I hope you consider my paper, as it will highlight the muchneeded awareness of trade secret recognition in India. The paper has been purposely written in easy and simple language for general understanding, even for non-legal readers, for whom this knowledge can be helpful (e.g., women running SMEs or household businesses).

Arbitration in Intellectual Property Disputes

Vishakha Sharma — 2024-01-04

This study delves into the rising trend of employing alternative dispute resolution (ADR) mechanisms, including arbitration, to address intellectual property (IP) disputes. Given the traditional court system’s limitations, ADR offers a more flexible and private avenue for conflict resolution. Arbitration, in particular, stands out due to its benefits, such as specialized expertise, confidentiality, and promptness. However, challenges persist, including concerns about consistent decision-making and the balance between transparency and secrecy. This discussion provides a comprehensive look into the merits and complexities of using arbitration as a primary method for amicably and efficiently settling intricate IP disputes.

Status of Patent Laws in the Era of Artificial Intelligence

Simran Sanjay Rane — 2023-11-06

Artificial intelligence is the future of technology, and not just in the field of science. Right from the daily function in our households to the manufacturing process in big industries can be done by machines with artificial intelligence. But it needs to be seen whether this encroachment of artificial intelligence in our day-to-day life activities would not render its maker obsolete. The object of this research is to find out whether artificial intelligence (AI) can get a patent registered in its name as an inventor. For that purpose, it will have to be established whether an artificial intelligence can be considered a person within the meaning provided under the Indian Patents Act and other relevant acts or agreements and whether it can be considered the true and first inventor of an invention. The
research also focuses on the aftereffects of the grant of a patent to artificial intelligence as an inventor.

Is Personality a Subject Matter of Intellectual Property as a Trademark? A Legal Discourse

Akash Chatterjee — 2023-12-28

The Trademarks Act has been a formal way of recognising the distinctive marks used by a person during any business operations or commercial enterprises to safeguard the identity they have built. It is important for proprietors to create a brand for their business that can be identified, referred to, and used to expand their goodwill. Traditionally, a trademark refers to marks, logos, and symbols used as a sign to identify with a brand or commercial activity it represents. This goes a long way in creating long-lasting impressions in the minds of consumers who might prefer or choose a particular brand. In light of this ideology, a ‘personality’ or the existence of a particular person with his unique set of attributes, skills, mannerisms, features, and qualities should also be a subject matter of trademark. We come across advertisements that have gone a long way in using these personalities and their attributes to secure a good brand name, reputation, and commercial gains too. Although this
represents monetary value in vesting traits of a particular personality, that is also an intellectual property of the person and demands protection. The paper will explore recent examples where a person’s unique traits have attracted his association with the brand, thereby helping in advertising the product with the person’s goodwill. Postures, voice, and mannerisms all go a long way in helping people remember a particular person, distinctly more so when there is an element of reputational goodwill. Any usage of the same must be warranted or allowed by the person, or else it is unfair, and an invasion of privacy too. This paper will analyze how personality is a product of intellect and deserves protection as intellectual property. A doctrinal analysis of the case laws and controversies
will help the author formulate and devise how personalities can be given protection like trademarks.

Legal Dynamics Lensing the Metaverse Crafted for the Video Game Industry and E-Sports: Phenomenological Exploration of Catalyst Complexity and Future

Bhupinder Singh — 2023-09-18

As the digital landscape continues to evolve, the convergence of virtual reality, e-sports, and legal dynamics has given rise to the concept of the metaverse, an interconnected digital environment where individuals can engage in diverse activities and interactions. The advent of the metaverse, an intricate amalgamation of digital environments, social interactions, and immersive experiences, has sparked a profound transformation in the realms of the video game industry and e-sports. The metaverse, a manifestation of advanced virtual reality and augmented reality technologies, raises multifaceted legal considerations spanning intellectual property, virtual property rights, privacy, digital economies, and user governance. Through a comprehensive examination of legal theories and illustrative case studies, this paper elucidates how traditional legal paradigms adapt to the metaverse’s distinctive attributes, reshaping conventional norms and fostering the emergence of innovative legal frameworks. The intersection between the metaverse and the video game industry is dissected, exploring topics like licensing agreements, user-generated content, and the reimagining of storytelling mediums. Adopting a phenomenological approach, this study delves into the lived experiences of individuals within the metaverse’s meticulously crafted servicescape, especially in the context of e-sports and competitive gaming. By scrutinizing players’ perceptions, emotions, and interactions as they partake in virtual tournaments, collaborative ventures, and interactive environments, the analysis sheds light on the formation of novel identities, virtual social structures, and evolving spectatorship dynamics. This lens offers profound insights into how the metaverse redefines the symbiotic relationship between players, viewers, and the digital landscapes they navigate. This study discussed the intricate interplay between legal dynamics, metaverse development, and their profound impact on the evolving landscape of interactive entertainment. By employing a phenomenological lens, this study embarks on an exploration of the metaverse’s transformative potential as a meticulously crafted servicescape for the video game industry and e-sports, unraveling
the complexities that ensue and envisioning the potential trajectory of this symbiotic relationship. As the metaverse continues to evolve, its role as a catalyst for complexity and innovation necessitates collaborative efforts from legal scholars, game developers, policymakers, and stakeholders, steering this symbiotic relationship towards a harmonious and ethically conscious future.

Availability of the Interim Injunction for Non-working Patents

Shriya Ghoshal — 2023-11-06

Intellectual property rights (IPR) include patent rights, which protect new and exceptional inventions by entrepreneurs. Unfortunately, IPR is still not widely understood, and only a few entrepreneurs are aware of its importance. Nevertheless, laws have been introduced to safeguard the interests of inventors and provide a commercial space for their inventions. Patents are generally classified into working and non-working patents. It is always a matter of confusion whether the rights available to the patentee are the same in both working and non-working patents. Therefore, this article aims to clarify the availability of rights for different types of patents, explain Form 27 of the Patent Act, 1970, discuss compulsory licensing, provide information about remedies available in cases of patent infringement, and examine case laws for the same.

Guarding the Stumps: Preserving Intellectual Property Rights in the Cricketing World

Kartik Tripathi — 2024-01-22

There have been some brilliant inventions and innovations in science, technology, and law. The advent of intellectual property (IP) law has led to legal intervention in the field of innovations and inventions. This has further led to the production and creation of novel products that were previously non-existent. A concept which has come to light, especially in the 21st century, is the relationship between intellectual property rights law and its implications for manufacturing sporting equipment and goods. The notion of trade secrets under IP law has also emerged. By focusing on contemporary illustrations like the IPL Spot Fixing Case 2013, the Cricket World Cup, and the Sacher Torte Case, the article will cater to the complexities that might arise while addressing IPR in cricket. Additionally, the glamorous aspect of cricket is also provided adequate protection under the IPR regime. The various types of IP applicable to cricket media aspects are trademark, copyright, design, and broadcasting rights, the main purpose of which is to protect the IP rights of all concerned stakeholders. Nevertheless, specific issues might arise in addressing these problems, such as the lack of application of copyrights to particular entities, unlike the IP laws of the USA, and the lack of patent rights for non-Indian entities. Additionally, scams, betting in cricketing events, and ambush marketing have created difficulties in preserving IP rights. This article will delve deeper into all these aspects of IPR in cricket and address the existing challenges. While significant strides have been taken in this field, we still need to realize the ultimate objective, i.e., to protect the IP rights of all in the process.

Hamdard National Foundation (India) and Ors. Vs. Sadar Laboratories Pvt. Ltd.

Varil S. Sheth — 2023-11-06

The Hamdard National Foundation (appellants) filed an appeal challenging a Delhi High Court single judge’s order. They sought a permanent injunction to prevent Sadar Laboratories (the respondent) from using the trademark ‘Sharbat Dil Afza,’ which they alleged was similar to Hamdard’s registered mark ‘Rooh Afza.’ The appeal was heard by a Division Bench of the Delhi High Court, consisting of Justices Vibhu Bakhru and Amit Mahajan. During the hearing, the single judge’s interim order from December 15, 2020, was discussed. In that order, it was recorded that the respondent had agreed not to manufacture and sell syrups and beverages falling under Class 32 using the disputed trademark ‘DIL AFZA’ until the final disposal of the case.

Extending the Horizons of Copyright Protection to Storytelling Platform: The Lens of Substantial Variation in Light of Humans of Bombay Stories Pvt. Ltd. V. People of India Pvt. Ltd.

Sneha Sharma — 2023-12-30

Copyright protection provides exclusive rights to the author of literary content on a storytelling platform to prevent others from replicating or copying their work without authorised access. The skill, labour, and investment of capital accord the creative touch to the copyrighted work and provide originality in the form of images, photographs, videos, literary content, and the manner of presentation and publication of the work. These are the protectable elements of the storytelling platform outside the public domain and possess exclusive rights for the author. The idea of a storytelling platform cannot be copyrighted, but the expression of such ideas with the help of protectable elements provides a unique character to the platform. This idea-expression dichotomy provides for originality and creativity which are protectable under the Copyright Act of 1957. There should not be any substantial imitation of the copyrightable elements in the storytelling platform. The fundamental similarities, which cannot be avoided, are legally permitted. However, there has to be substantial variation in the subsequent works of storytelling platforms to fulfil the criteria of originality and creativity. The Delhi High Court, in its recent judgement of Humans of Bombay v. POI Social Media Pvt. Ltd. & Anr., has dealt with the copyrightability of storytelling platforms and provided legal standing as to how the platforms would be governed under the copyright law, taking into consideration the interests, of the authors and those of the public to avoid replication of similar content on different storytelling platforms in line with the purpose of the Copyright Act of 1957.

The Impact of Regulating Online Gambling on the Validity of Wagering Agreements in India

Diksha Gupta — 2023-11-03

This article delves into the multifaceted impact of regulating online gambling on the validity of wagering agreements in India. With the rapid growth of online gambling platforms, the legal landscape surrounding wagering contracts has witnessed significant shifts. Recently, the Indian government introduced regulations aimed at governing and overseeing online gambling activities. This article seeks to explore the repercussions of these regulatory measures on the validity and legality of wagering agreements in India. This investigation sheds light on the intricate interplay between regulation and contract law, providing insights into the future of online gambling in the Indian legal landscape.