By: Rupin Chopra & Ananyaa Banerjee
First Published in ‘IPR Corner’ of Lex Witness COVID19 Special Issue – Volume 11 Issue 10 | May 2020
INTRODUCTION – NEW NORMAL POST COVID TIMES
It was March 11, 2020 when the world got one of the biggest jolts of the century when the World Health Organization’s Director-General Tedros Adhanom announced the COVID-19 outbreak, that started in December 2019 in the Wuhan city of China, to be a pandemic, cautioning that the WHO has “rung the alarm bell loud and clear.” It has been few months since then and, as per the Health Offices, the virus is here to stay with us for a while.
When the world is plagued by the novel coronavirus and lockdown has become the new norm of living, governments and corporate entities of the world are expressing solidarity in spreading the message of ‘social distancing’.
The outbreak of COVID-19 pandemic and subsequent lockdown has hurled such challenges, tests, trials and encounters that have compelled businesses and individuals to explore ideas and experiments that would help them to survive and thrive in this period of the deadly contagion. Businesses and establishments were certainly not prepared for this shock absorption and have thus either drowned or have adopted ways and methods which has kept them afloat in these trying times.
In a similar manner, the Intellectual Property regime in India has also witnessed a paradigm shift with increased online filings, virtual hearings, digital communications and an incessant rise in filing and registration of Corona/COVID related trademarks, trademark filings for sanitizers, PPE kits, disinfectants, patent filings for ventilators and development of therapeutic drugs and vaccine to fight the pandemic.
Online filings – Intellectual Property
One of the lessons that the pandemic has imparted is that digitization and remote functioning of offices/businesses is the new normal and the need of the hour. Subsequently, several sectors and offices are accommodating themselves to the new change and accordingly the Intellectual Property Offices in India have also issued guidelines for digital functioning of its offices.
For instance, the Intellectual Property Appellate Board i.e. the IPAB has, vide its notification dated May 26, 2020, announced setting up of online e-filing platforms, whereby the parties can file soft copies of their case matters in accordance with the jurisdictions and prescribed Counsels as mentioned in the notification. However, under this new system of e-filing, the Counsels have to furnish an undertaking stating that the physical copies of the case matters would be filed as and when the lockdown terminates.
Limitation period & Deadline extensions
Supreme Court Extends Period of Limitation till Further Notice
The hon’ble Supreme Court took account of the corona virus (covid-19) and resultant difficulties that may be faced by litigants in filing their petition/ applications/ suits/ appeals etc., within the period of limitation prescribed under general law of limitation or under special laws (both central and/ or state).
In order to obviate the above difficulties and to ensure that lawyers/ litigants do not have to come physically to file such proceedings in respective courts/ tribunals across the country or miss statutory deadlines, including the Supreme Court, it was ordered by the apex court in the Suo Motu Writ Petition (Civil) No(s). 3/2020 that period of limitation in all such proceedings, irrespective of the limitation prescribed under general or special laws, whether condonable or not shall stand extended w.e.f. March 15, 2020 till further order/s are made by the hon’ble Supreme Court in this regard. It was also declared that the said order is a binding order within the meaning of Article 141 on all Courts/Tribunals and Authorities.
The Supreme Court directed that its order must be brought to the notice of all High Courts, and through them, it should be communicated to all subordinate courts and tribunals in their respective jurisdictions.
The Supreme Court’s order can be accessed here.
Cgpdtm in its recent notification states that the New Deadlines to be Determined by the Court
The Hon’ble Controller General of Patents, Designs and Trademarks (CGPDTM) vide its notification dated May 18, 2020 had extended the period or timeline for completion of various Acts/Proceedings, filing of reply/document, payment of fees, etc. in IP matters which were filed with offices under the administrative control of the CGPDTM and wherein the due date fell between March 15, 2020 to May 17, 2020, till June 01, 2020. The said notification dated May 18, 2020 can be accessed over here.
Thereafter, the Hon’ble Delhi High Court, vide its order dated May 21, 2020 which can be accessed over here, in the case of Intellectual Property Attorneys Association (IPAA) and Anr. Vs. the Controller General of Patents, Designs and Trademarks and Anr. W.P. (C) No. 3059/2020, stayed the effect of public notices dated May 18, 2020 and May 20, 2020, with respect to such due dates and then again on June 17, 2020, held that the said interim order shall continue to operate. The June 17, 2020 order can be accessed over here
In furtherance to the same, the CGPDTM, vide its notification dated June 19, 2020 which can be accessed over here, notified to all the stakeholders that the public notice dated May 18, 2020 stood effectively withdrawn and the timeline or period for the completion of such acts or proceedings, filing of reply or document, payment of fees, etc. falling due after March 15, 2020, would now be determined as per the orders of the Hon’ble Court, as the case may be.
Public Viewing of Court proceedings
In another significant development, the Delhi High Court has permitted, vide its notification dated June 20, 2020, public viewing of the Court hearings by persons interested, provided that the stability of the system is not disturbed (consistent with the available bandwidth) and the same is not an in-camera proceeding. For further information, read the notice here.
The Delhi High Court also released Rules, which are called ‘The High Court of Delhi Rules for Video Conferencing for Courts, 2020.” As per Rule 2(iv) herein, ‘the Court’ is deemed to include within it physical and virtual Court or a Tribunal.
INDIA’s VISION FOR ATMANIRBHAR BHARAT
Prime Minister Narendra Modi’s vision of “Atmanirbhar Bharat” to mitigate the devastating impact of the virus on businesses, particularly MSMEs, SMEs and startups has provided the much required impetus to these entities and the manufacture, sale and usage of local brands is being widely promoted across digital platforms in India. Resultantly, several businesses have ventured into manufacture and sale of home grown products be it FMCGs, apparels or electronics.
The disruption in normalcy caused by the pandemic has also compelled the public towards new explorations and experiments and businesses have taken note of these changing times and are curating innovative DIY kits and projects to address the specific needs and hobbies of the consumers amidst this pandemic and subsequent lockdown. Such innovations and creations shall be adequately protected by the businesses and startups under the relevant Intellectual Property Rights. Hence, in the near future, it is expected that the Intellectual Property Office records, which is in general dominated by foreign filings, will see an escalation in domestic filings.
THE BATTLE WITH RISING CASES OF COUNTERFEITING
The menace of counterfeiting has penetrated every nook and corner of India and is causing loss of revenue and dilution of brand value to brand owners and the Government at a large scale.
With COVID-19 afflicting the world at an alarming pace, the menace of counterfeiting appears to be manifesting itself not only as a threat to legitimate brand owners, but also is posing a major risk to the health issues which in turn is adding up the medical emergency that the countries are facing due to the sudden pandemic outbreak. The World Health Organization has recently warned against a surge in fake medicines, notably in the developing world, and Interpol’s global pharmaceutical crime fighting unit, Operation Pangea, has reportedly made 121 arrests across 90 countries in just seven days, resulting in the seizure of dangerous pharmaceuticals worth over $14m.
All the stakeholders have joined hands and are doing their bit in identifying and combating with any possible counterfeit product that they come across. Big Brands are also doing their bit. For example Amazon, in particular, has specifically informed sellers that they “prohibit the listing or sale of products that are marketed as unapproved or unregistered medical devices.” Google has also taken steps to crackdown on fake or misleading advertising as fraudulent ads and counterfeits surge during the COVID-19 pandemic.
Further, an important thing that the stakeholder needs to keep in mind currently is to ensure COMMUNICATION, as communication is the best weapon currently to combat the menace of counterfeiting. Especially, the consumers are the strongest warriors in this battle apart from the Courts and Police. The most important step in this battle is identifying counterfeit products and the easiest way to do recognize this is through consumers, not only in the physical marketplace but also online on account of lockdown/restrictions in movement. Hence, whenever a consumer comes across any counterfeit product, they should immediately inform the brand owners about it. This would catalyze the process of curbing counterfeit, as the brands would now be aware of their enemy, who are mostly hidden behind a veil.
These unprecedented times have changed the way we live, think, work or shop. Almost all sectors have undergone a radical change to accommodate the new normal. The introduction of online filing of IP matters with the Hon’ble Supreme Court, various High Courts & IPAB & other technological measures by the various authorities to facilitate smooth IP prosecution has been commendable and have amply prepared India Inc. for post COVID times. It can be said that the contours of the Indian Intellectual Property regime is embracing this change with digitization having played an instrumental role in sailing through this tough time.