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Myanmar- Trademark Registration Starting – October 1, 2020

The Ministry of Commerce of Myanmar has issued a notification no. 63/ 2020 dated August 28, 2020 announcing that soft opening period for re-filing trademarks under the new law in Myanmar will commence from October 1, 2020. The new trademark law in Myanmar will operate in two phases as under:

1.    Soft Opening Period (from October 1, 2020 to March 31, 2021)
2.    Grand Opening (from April 1, 2021)

The ‘soft-opening period’, will commence for recognizing existing trademark registrations by allowing these registrations to be re-filed in order to maintain the protection of their trademarks under the new law on a first to file principle. The Ministry may periodically announce additional requirements or stipulations as the soft opening period progresses. No new trademark will be received for registration during this transition period.

Myanmar- Trademark Registration- Requirements

1.    Owner’s name and address
2.    Clear specimen of the proposed mark;
3.    Classes and list of goods and/or services (identical to those already recorded with the Registrar of Deeds);
4.    Claim of priority (if any) and its supporting documents;
5.    Claim of colors of the mark;
6.    A scanned copy of the recordation of the declaration of ownership or renewal the Registrar of Deeds;
7.    If the trademark is already used in Myanmar, evidence of use and the first date of use.

Further, the official fee under the new law, including trademark application filing fees, shall be announced vide a separate notification by the Ministry before the soft opening period begins.

Related Posts

TRADEMARKS IN MYANMAR

TRADEMARK REGISTRATION MYANMAR


Global Innovation Index 2020: India ranked at 48 among 131 countries

The World Intellectual Property Organization (WIPO) released the Global Innovation Index 2020: Who will Finance Innovation? on September 02, 2020[1]. This year, the GII rankings were topped by Switzerland, Sweden, U.S., U.K. and Netherlands while India, China, the Philippines, and Viet Nam have been listed as the economies with most significant progress in their GII innovation ranking over the years.

TOP 3 INNOVATION ECONOMIES BY REGION

Source: GII 2020

Impact of COVID-19 on Innovation

GII crucially analyses the impact of COVID-19 pandemic which has impacted almost all walks of life and sectors. In this context the report strongly words that COVID-19 pandemic has triggered an unprecedented global economic shutdown which has severely hindered the innovation worldwide. The report also states that the crisis struck innovation when it was flourishing and the situation requires for government support as well as collaborative models and also continued private sector investment in innovation.

Decline in Innovation Finance

The GII also reports a decline in innovation finance and one of the critical areas recognized is the impact of the current crisis on start-ups, VC (venture capital), and other sources of innovation financing. The findings indicate that money to fund innovative ventures is drying up as there are few initial public offerings (IPOs) in sight, and the start-ups that survive may grow less attractive and profitable for—venture capitalists.

India’s Position- GII 2020

  • India’s Global Innovation Index 2020 rank is 48 among 131 economies, moves up by four positions since 2019
  • India tops the list in innovation economies ranking in the Central and South Asia
  • India ranks 3rd among the lower middle-income group. GII remarks this as a new milestone
  • India ranks high in Knowledge and technology outputs and Market sophistication
  • India ranks high in Knowledge and technology outputs (27th) and Market sophistication (31st) contrast with its relatively lower rank in Infrastructure (75th)
  • India has been recognized of being innovation achievers for 10 consecutive years
  • India ranks 2nd for the fifth consecutive year- with top positions in the quality of scientific publications (21st globally) and the quality of its universities (22nd). Indian Institute of Technology (Bombay and Delhi) and the Indian Institute of Science Bengaluru have been recognized as top 3 universities.
  • India increases the most in three pillars: Institutions (61st), Business sophistication (55th), and Creative outputs (64th)
  • Report recognized India for valuable brands and ranks 31st in the GII indicator on Global brands. India’s 164 brands led by TATA Group feature in the top 5,000 brands globally.
  • India recognized for a vibrant start-up ecosystem as it has 6 of the top 100 most entrepreneurial cities in the world
  • India recognized for investing in Science intensive industries including medical sciences and biosciences as these instruments can effectively be used to foster investments
  • India recognized for nurturing its start-up ecosystem
  • India’s investment in R&D has decreased over the last decade from 0.85% of GDP in 2008–2009 to remain stagnant at around 0.7% for the last several years.
  • The report recognizes the efforts of multiple government departments like notably the Department for Promotion of Industry & Internal Trade (DPIIT), NITI Aayog, DST, and DBT for being instrumental in framing the policies and regulations for start-up investments.
  • The newly amended CSR rule mandating profitable companies to contribute to incubators and research projects in publicly funded universities, Indian Institutes of Technology (IITs), and national laboratories and recognizing it as eligible for CSR funding has been noted as one of the driving forces for investment in start-ups in India.

India has been remarked as the “Innovation achievers” and also the Indian start-up ecosystem has been praised as exemplary for boosting start-up investments and funding. The concerted efforts of the Government to build a conducive environment for fostering innovations and start-ups appears to be streamlining and consistent efforts may make India a developed economy in near futur

[1] https://www.wipo.int/edocs/pubdocs/en/wipo_pub_gii_2020.pdf

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Display calorie values menu cards India FSSAI

The Food Safety and Standards Authority of India (FSSAI) on August 21, 2020 issued a notification mandating the display of calorific value of food items on menu cards at various food service establishments from January 01, 2022[1].

It would be relevant to mention here that the draft of the Food Safety and Standards (Packaging and Labelling) Amendment Regulations, 2018 was published by the FSSAI on October 08, 2018 and objections and suggestions were invited from persons likely to be affected by the Regulations. In view of the objections and suggestions to the Regulations received, the FSSAI has amended the Food Safety and Standards (Packaging and Labelling) Regulations, 2011 (Regulation of 2011) by introducing a new rule i.e. Rule 2.4.6 in the Regulations. The new Rule states as follows:

“2.4.6 – Display of information in food service establishments – (1) Food Service Establishment having central license or outlets at ten or more locations shall mention the calorific value (in kcal per serving and serving size) against the food items displayed on the menu cards or boards or booklets and the reference information on calorie requirements shall also be displayed clearly and prominently as “An average active adult requires 2,000kcal per energy per day, however, calorie needs may vary.”

Display of information relating to allergens made mandatory

The FSSAI further mandates the display of information relating to food allergens on the menu card, if food consists of or is made of the following:

  • Cereals containing gluten; i.e., wheat, rye, barley, oats, spelt or their hybridized strains and products of these;
  • Crustacean and their products;
  • Milk and milk products;
  • Eggs and egg products;
  • Fish and fish products;
  • Groundnut tree nuts and their products;
  • Soybeans and their products;
  • Sulphite in concentrations of 10mg/kg or more:

The Rule also states that for convenience, allergens can be depicted by symbols.

The Rule additionally provides that the prescribed logo for vegetarian or non-vegetarian should also be displayed on the menu card.

Does the Rule apply to all restaurants and hotels?

As per the amendment, the impugned Rule applies to Food Service Establishments having central license or outlets at ten or more locations.

Exceptions to the Rule

Additionally, the rule also specifies the exceptions as under:

“2.4.6. – Display of information in food service establishments –

(3) The provisions of this regulation shall not be applicable to the following, namely: –

  1. Event caterers and food service premises that operate for less than sixty days in a calendar year (consecutively or non-consecutively);
  2. Self-service condiments that are free of charge and not listed in the menu card; and
  3. Special-order items or modified meals and menu items as per request of the customer.”

In addition to this, the food establishments such as restaurants have been instructed to mandatorily mention information concerning nutrition specific to organic food or ingredients, if applicable, “provided that deviation of 25% may be tolerated in case of nutritional information declaration.”

Does the Rule apply to E-commerce food business operators?

The new rule specifically mentions that the E-commerce Food Business Operators shall get the requisite information (as mentioned aforesaid) for the food items from the respective Food Business Operator and provide the requisite information on their website wherever applicable.

The FSSAI is of the view that by making this practice mandatory, the customers will make a more informed choice and will also empower them in making the right choices. This will help one in keeping a count of calories that one intakes and can balance their calorie intake accordingly.

The compliance to the new rule by food service establishments before January 01, 2022, is voluntary.

[1]https://fssai.gov.in/upload/notifications/2020/08/5f4611c4eca96Gazette_Notification_Information_Display_Food_26_08_2020.pdf

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Delhi High Court extends interim orders till October 31

The Indian Daily, The Economic Times has reported that the Hon’ble Bench of Delhi High Court comprising of Chief Justice D.N. Patel and Justices Siddharth Mridul and Talwant Singh have further extended the order passed by the Delhi High Court with reference to extension of interim orders on March 25, 2020 till October 31, 2020[1].

The Hon’ble Court vide its order dated March 25, 2020 had extended the interim orders and ordered that all interim orders passed by the Delhi High Court and its Subordinate Courts, which were subsisting as on March 16 and are likely to expire or have expired, will automatically extend till May 15, 2020 or until further orders to the contrary have been passed by the Hon’ble Supreme Court of India in any particular matter, during the intervening period[2].

The Hon’ble Court in its recent order has stated that all interim orders which were to expire on August 31 stand extended till October 31 and is applicable to criminal matters relating to bails, interim bails and parole also.

In the wake of COVID-19 pandemic, at present the hearings are being carried out through video conferencing, however the Delhi High Court is planning to gradually resume physical hearings with the consent of all and subject to complete availability of public transport.

Also read Delhi High Court to plan opening of Courts form September 01, 2020

Delhi HC introduces public viewing of Court proceedings

[1] https://economictimes.indiatimes.com/news/politics-and-nation/covid-19-delhi-hc-extends-all-interim-orders-till-october-end/articleshow/77715175.cms

[2] https://www.ssrana.in/articles/delhi-high-court-covid-19-outbreak/


Innovative Relationship of Patents & Business Entities During Crisis

By Sukku and Abin T. Sam

INTRODUCTION

Intellectual property has always driven business entities around the globe to innovate and prove its mark in the dynamic environment. IP has played a major role in promoting research and development to stay ahead of the hefty competition. Patent can be understood as an  exclusive right granted to the inventor in lieu of his or her innovative work, which permits the right holder to bar others from exploiting the right for specified period of time.

In the present situation of Covid-19 outbreak, the commercial world is almost at a halt and barely holding on to survive. In  times like this, , where all aspects of future such as economic, social and developmental will be affected, it is intellectual property that will gleam and emerge as a savior and a helping hand for all. In this particular article, the focus will be on the patent regime and its contributions to help the companies grow and survive in the long run.

It has been rightly said, “unprecedented time calls for unprecedented measures”, the pandemic has created an unprecedented situation which needs to be addressed and further analyzed as to how the companies can utilize this time and their intellectual resources to remain afloat and survive in the long run, as a lot of novel inventions currently in the form of new technologies, medical devices and medical products are protected via the patent regime. This would further enable the business entities towards a more secure market position and ensure financial return in the future from third party users in the form of compulsory licensing as well. Under the Patent regime,  there are numerous bonuses that would ensure the growth of a business entities even in such downtrodden time.

  • Firstly, it enables one party to have a negotiating tactic by having an upper hand if it decides to take the route of amalgamation to survive, as great consideration is given to the research and development wing of business entities and its holding in the form of IP assets.
  • Secondly, it provides necessary protection to the research and development wing of business entities as to encourage inventions and innovations. Adequate protection of the R&D wing is advisable as it is usually one of the factors that leads to the inflow of investment.
  • Thirdly, even though COVID-19 has led to a lockdown situation and closure of all commercial activities, the positive side of it can be looked as a much-needed time to introspect into its own inventions and come further ahead of the competition.

Open COVID Pledge

A global collaboration in the form of Open Covid Pledge[1] has been introduced which enlists a number of patent holders who have made their inventions available free of charge for use towards the impact minimization and eradication of the COVID-19.

The coalition of the Covid Pledge has been created in the form of license, the participants or the Corporation may avail to fulfill the pledge. The Pledger/Corporation provides or grants access to a non-exclusive patent with no royalty across the globe without the need or hassle of a sub license. Pledges and open licensing at such a time of need can spur innovation. The patent regime has been developed and designed to promote progress; as it should not be used to exploit the innovation at the cost of people’s live hence the Open Covid Pledge enables the organization to freely adopt and combine the innovations with their ideas against this infectious disease. As a majority of the member nations under WIPO have made an attempt to revise and relax their licensing and regulatory measures while trying to fight this deadly infection as they might also have to fight against the attempts of establishing monopoly by various companies over a product and privatization of certain sectors, which is the need of this hour for as well.

BUSINESS ENTITIES TOGETHER IN THE FIGHT AGAINST COVID-19

Big giants have voluntarily attempted to implement a raft of measures to ease the crisis, such as,

  • AbbVie[2], a pharmaceutical giant has iterated that it will no longer enforce patents in regard to Kaletra drug throughout the globe all for its formulations,
  • Likewise, Amazon has provided free access to its patents and further access to the WHO the cloud technologies and technological expertise for tracking of the infection corona,
  • Gilead Sciences[3] in reference to its orphan drug designation granted for the investigational antiviral drug Remdesivir has approached the Food and drug administration to rescind it and similarly, it has entered into a non–exclusive licensing agreement for manufacture and distribution of the drug Remdesivir, a potential therapy for COVID – 19 with five generic pharmaceutical manufacturers based in India and Pakistan namely, Cipla Ltd., Ferozsons Laboratories, Hetero Labs Ltd., Jubilant Lifesciences and Mylan,[4]
  • Hewlett Packard Enterprise[5] has enabled free access to its patented technologies for diagnosing, preventing, containing and treating of Covid-19. In addition, it also provided access to supercomputing software applications, computing and storage systems to advance diagnosis and treatment of COVID – 19[6].
  • IBM[7] has enabled free access of its intellectual property assets for researchers and scientists that enumerates upon anti-viral agents and methods of treatment by the use of these agents that relates to COVID-19 treatment. Additional access has also been provided with reference to a patent that uses ultraviolet light for pathogen mitigation and algorithms to predict the time and range of events, including epidemics,
  • Intel Corporation[8]has also provided free access to more than 72000 patents for the purpose of research on COVID – 19.
  • Novartis too has provided access to a set of compounds from its libraries that are considered suitable for in vitro antiviral testing. OxyGEN being a collaborative hardware project has launched an open source, low cost and low tech respirator for mass production and Sandia National Laboratories has also provided access to its technology patents for free of cost and non-exclusive commercial licensing, patent catalogue inclusive of more than thousand technologies which have been mostly developed for use in biotech, supply chain, cyber security sectors and manufacturing[9].
  • Similarly, Medtronic, a leading medical device company shared its design specifications for ventilators to speed up and accelerate the manufacture of ventilators to help doctors and patients fighting the COVID-19 pandemic.

Giant Corporations, International Agencies and nations all over the world are facilitating their patents to contribute towards positive outcomes and fight against COVID – 19. The United States of America has made an attempt to fast track its process of registration for small or micro entity so as to ensure growth and development of both the nation and the economies as earlier the standard time for process had been fifteen months but it has been revised and attempted to be completed within months as few as six and in addition to it there will be no extra charge[10].

The business entities, which are attempting to discover the vaccine of the said infection in question, must realize their social responsibility towards the mankind at large and perform it without taking into the factor of profit consideration as it is essential that the vaccine is available to every economy whether strong or weak and every individual irrespective of their economic spending.

Remedies that could be availed by the Government in such times

Even though the inventor has an exclusive right over the invention under the Patents Act, there are certain remedies available with the Central Government and the Patent Authorities to ensure that the Patent is accessible to all:

  • Firstly, under the Bolar Exemption in reference to Section 107A of the said act a generic company has the right to conduct research on an already patented drug for development of data and claim regulatory approvals so that after the expiry of the said patent a new and modified invention is already ready to take place.
  • Secondly, under Section 84 of the Patent Act, 1970, compulsory license can be granted on a request made by any person to the Controller for usage of the patent with the permission of the patentee after the three-year period has lapsed.
  • Thirdly, in reference to Section 92 of the said act the Central Government has the right to access any patent under a national emergency or other circumstances which it deems fit and Covid – 19 could be example of that as the government can grant a compulsory license under the said section even without the expiry of mandatory and statutory three year period.
  • Fourthly, in reference to Section 100 of the said act the central government can use and refer to the invention for its own purposes and further sell off the same on a noncommercial basis as well.
  • Fifthly, in reference to Section 66 of the said act the central government has the power to revoke a patent under public interest if the patent itself or it’s mode of execution is mischievous in nature or further it can be revoked as well if it is prejudicial towards the public or security of the state.

Similarly the Hon’ble Delhi High Court has under Merck v. Glenmark[11] iterated that, in consideration of life saving drugs public interest has to be upheld[12].

International organizations like WHO, WTO and WIPO shall also consider extending support to nations urging immediate attention and if need be also consider suspending the enforcement of intellectual property rights that may pose as an obstacle in procuring the products and devices necessary to protect mankind against this deadly contagion.

Also read- COVID, VENTILATORS & PATENTS

[1]https://opencovidpledge.org

[2] WIPO,Covid Policy Tracker, Corpoeration, AbbVie (Patents), https://www.wipo.int/covid19-policy-tracker/#/covid19-policy-tracker/voluntary-actions-text

[3]WIPO, Covid Policy Tracker, Corpoeration, Gilead Sciences (Patents), https://www.wipo.int/covid19-policy-tracker/#/covid19-policy-tracker/voluntary-actions-text

[4] https://www.gilead.com/purpose/advancing-global-health/covid-19/voluntary-licensing-agreements-for-remdesivir

[5]WIPO, Covid Policy Tracker, Corpoeration, Hewlertt Packard Enterprise (Patents), https://www.wipo.int/covid19-policy-tracker/#/covid19-policy-tracker/voluntary-actions-text

WIPO COVID – 19 IP Policy tracker Corporation https://www.wipo.int/covid19-policy-tracker/#/covid19-policy-tracker/voluntary-actions-text

[7]WIPO, Covid Policy Tracker, Corpoeration, IBM (Patents), https://www.wipo.int/covid19-policy-tracker/#/covid19-policy-tracker/voluntary-actions-text

[8]WIPO, Covid Policy Tracker, Corpoeration, Intel (Patents), https://www.wipo.int/covid19-policy-tracker/#/covid19-policy-tracker/voluntary-actions-text

[9] WIPO COVID – 19 IP Policy tracker https://www.wipo.int/covid19-policy-tracker/#/covid19-policy-tracker/voluntary-actions-text

[10]Covid related U.S. patents get fast track for small businesses, Susan Decker, Bloomberg, May 08, 2020 https://www.bloombergquint.com/onweb/covid-related-u-s-patents-to-be-fast-tracked-for-small-business

[11] FAO (OS) 190/2013

[12] Patents and Covid – 19 Strategies for patentees generics and the Indian Government, Aditya Gupta, Lexology


Validity of Motor Vehicle Documents extended till December 31, 2020

The Union Ministry of Road Transport and Highways (MoRTH) has notified on August 24, 2020 that the validity of all motor vehicle documents such as fitness, permits, licenses, registration papers, etc., under the provisions of Motor Vehicle Act, 1988 along with Central Motor Vehicle Rules, 1989 have been further extended by the Ministry until December 31, 2020[1].

The Central Government vide its previous orders dated March 30, 2020[3] and June 09, 2020 respectively extended the validity of motor vehicle documents till September 30, 2020. This is the third extension that the Ministry has passed in the last 6 months, due to the coronavirus crisis. However, examining the current situation, the Ministry believes that a third extension for the same is required for the easement of citizens and their vehicles.

The Ministry has stated in its press release that:

“Taking into consideration the situation still continuing due to conditions for prevention of spread of COVID-19 across the country, it has further advised that the validity of the above referred documents whose extension of validity could not or not likely to be granted due to lock-down and which had expired on February 1, 2020 or would expire by December 31, 2020, the same may be treated to be valid till December 31, 2020.”

The aforesaid move by the Central Government will certainly help the general public and also help in prohibiting the spread of the virus.

Also read Relaxation to renew heath and motor vehicle insurance amid COVID-19

[1] https://www.pib.gov.in/PressReleseDetailm.aspx?PRID=1648182

[3]https://www.ssrana.in/articles/novel-coronavirus-covid-19-outbreak-ministry-of-road-and-transports-issued-advisory-extending-the-validity-of-documents-related-to-motor-vehicles-act-1988-and-central-motor-vehicle-rules-1989/


BIS Certification for “Safety of Toys” made Compulsory

The Bureau of Indian Standards (hereinafter referred to as BIS) is a statutory body established under the Bureau of Indian standards Act, 2016 (hereinafter referred to as the Act). One of the main functions of BIS is to prescribe standards for covering goods and systems under the BIS regime.

Recently, BIS has brought ‘Safety of Toys’ under compulsory certification with effect from September 01, 2020 as per Toys (Quality Control) Order, 2020 issued by DPIIT, Ministry of Commerce and Industry[1].

Also read BIS Certification for Imported Toys made mandatory

Classification of Toys for BIS certification

As per the said order for the purpose of BIS certification, toys have been classified into following two types:

S No.TypeApplicable primary standards
1.Non Electric Toys (these are ordinary toys such as rattles, dolls, puzzles, etc. which do not have any function dependent on electricity) S 9873 (Part 1):2019
2.Electric Toys (these are toys which have at least one function dependent on electricity)IS 15644:2006

The license to the manufacturers would be granted by BIS under the BIS Standard Mark as per Scheme I of Schedule II of the BIS (Conformity Assessment) Regulations, 2018. Further, both International and domestic manufacturers can now apply for obtaining the certification online.

If licence is required for more than one type of toy, separate applications shall be made for each type. (However, samples shall be tested by BIS for conformity to the primary standard and the secondary standards which are applicable i.e. IS 9873 parts 2,3,4,7, and 9 etc.)

The above notification has ended a long haul wait for the toy manufacturers and is a great initiative to ensure safety of toys available in the market are of the prescribed quality and standard.

[1] https://bis.gov.in/wp-content/uploads/2020/07/Safety_of_toys.pdf

Also read

Bureau of Indian Standards (BIS) Hallmarking: India

Bureau of Indian Standards (BIS)- Foreign Manufacturer’s Certification Scheme

Bureau of Indian Standards (BIS)– Overview and Importance


GST registration after physical verification of business place if Aadhaar not authenticated

As per the fresh directions issued by the Central Board of Indirect Taxes and Customs (CBIC) vide Notification no. 62/2020, businesses willing to register under GST can choose to opt for Aadhaar authentication, in the absence of which registration would be granted after physical verification of the place of business.

Key highlights of CBIC notification

  • The CBIC has further clarified that when an applicant for GST registration opts for authentication of Aadhaar number, he shall, with effect from August 21, 2020, undertake the said authentication while submitting an application.
  • The notification states that where a person fails to undergo authentication of Aadhaar number or does not opt for authentication of Aadhaar number, the registration shall be granted only after physical verification of the place of business in the presence of the said person.
  • Thus, any person registering under GST can opt for Aadhaar authentication, in which case registration is deemed to be granted within 3 days without physical inspection of the premises. In other cases, the time period could be up to 21 days and authorities can undertake physical verification of place of business or detailed review of documents as necessary.

Earlier in March this year, CBIC had issued a notification making Aadhaar authentication mandatory for GST registration from April 1, 2020. 

Conclusion

The new notification issued on Friday is deemed to be a positive step to restrict tax evasion by rigorous pre-registration verification norms. The notification will also speed up the registration process amidst the COVID-19 outbreak by allowing verification through Adhaar when physical verification of the business place is difficult. Furthermore, linking GST, Adhaar and PAN will be helpful for the government in a number of ways as it will further centralise the tax database to ease the regulatory operation for the concerned authorities.

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GST registration after physical verification of business place if Aadhaar not authenticated

As per the fresh directions issued by the Central Board of Indirect Taxes and Customs (CBIC) vide Notification no. 62/2020, businesses willing to register under GST can choose to opt for Aadhaar authentication, in the absence of which registration would be granted after physical verification of the place of business.

Key highlights of CBIC notification

  • The CBIC has further clarified that when an applicant for GST registration opts for authentication of Aadhaar number, he shall, with effect from August 21, 2020, undertake the said authentication while submitting an application.
  • The notification states that where a person fails to undergo authentication of Aadhaar number or does not opt for authentication of Aadhaar number, the registration shall be granted only after physical verification of the place of business in the presence of the said person.
  • Thus, any person registering under GST can opt for Aadhaar authentication, in which case registration is deemed to be granted within 3 days without physical inspection of the premises. In other cases, the time period could be up to 21 days and authorities can undertake physical verification of place of business or detailed review of documents as necessary.

Earlier in March this year, CBIC had issued a notification making Aadhaar authentication mandatory for GST registration from April 1, 2020. 

Conclusion

The new notification issued on Friday is deemed to be a positive step to restrict tax evasion by rigorous pre-registration verification norms. The notification will also speed up the registration process amidst the COVID-19 outbreak by allowing verification through Adhaar when physical verification of the business place is difficult. Furthermore, linking GST, Adhaar and PAN will be helpful for the government in a number of ways as it will further centralise the tax database to ease the regulatory operation for the concerned authorities.

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Renewal of Vehicle Insurance- Pollution Under Control (PUC) Certificate mandatory

The Insurance Regulatory and Development Authority of India (IRDAI) has issued a circular dated 20th August, 2020[1] , whereby it has asked all the general insurance companies in India to obtain a valid Pollution under Control (PUC) Certificate for vehicles at the time of renewal of insurance policy. The IRDAI’s circular has been issued in pursuance of the order passed by the Hon’ble Supreme Court of India in M.C. Mehta v. Union of India[2], wherein the Apex Court had ordered insurance companies not to insure a vehicle unless it has a valid PuC certificate on the date of renewal of the motor insurance policy.

IRDAI directs Insurance Companies to follow Supreme Court’s direction in M.C. Mehta case

  • IRDAI in its circular addressed to all general Insurance Companies to ensure that the direction of Supreme Court of India is followed scrupulously with a special focus on compliance in the Nation Capital region of Delhi, due to the increasing vehicular pollution in the capital region.
  • The Central Pollution Control Board (CPCB) has raised concerns about the compliance to the Apex Court’s direction and status of its implementation especially in the National Capital Region of Delhi in view of alarming impact of air pollution on health of people in Delhi.

Air pollution in Delhi NCT is no less than a traumatic experience for people residing here. Every year around October, Delhi NCT witnesses alarming increase in air pollution and vehicular pollution plays an immense role in aggravating the same. Hence, issuance of Rules that would ensure plying of vehicles which comply with environmental norms and standards like obtaining PuC Certificate at time of renewal of vehicle insurance is a welcome move.

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[1] https://www.irdai.gov.in/ADMINCMS/cms/whatsNew_Layout.aspx?page=PageNo4221&flag=1

[2] Writ Petition (Civil) No.13029 of 1985


PROTECTION AND ENFORCEMENT OF DESIGN RIGHTS IN INDIA

By Dhruv Mathur and Isha Tiwari

Introduction

An innovative design has the potential to revolutionize the industry. Simplest of designs with their inherent efficiency and uniqueness have catered to consumers’ basic needs for decades. Seldom known famous designs which might have skipped one’s attention, but not their needs include the ball-point pen, bendy straw, angelpoise lamp, Post-it® notes and Tupperware®, to name a few. So, why is design an essential criteria for an article, and does it warrant separate legal protection? The scope of the article attempts to highlight the growing significance of design rights and its current scenario in India.

What is a Design?

Design rights protect the novel features such as shapes, configuration, colour combination, surface ornamentation, composition of lines, or patterns of an article, whether in two dimensional or three dimensional or in both forms, which provide an aesthetic element instead of a functional quality. In India, filing, prosecution and registration of an industrial design is governed by the Designs Act, 2000 (hereinafter referred to as the ‘Act’), alongwith its corresponding Designs Rules, 2001. The Act has been enacted in mandate with the minimum scope of protection granted to designs as per Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), while conforming to international protection standards. As per the Act, a ‘design’ includes features of shape, configuration, pattern, ornament or composition of lines or colours applied to any article whether in two dimensional or three dimensional or in both forms, by any industrial process or means, whether manual, mechanical or chemical, separate or combined, which in the finished article appeal to and are judged solely by the eye[1].

Scope of protection under the Act excludes the following:

  • any mode or principle of construction;
  • anything which is in substance a mere mechanical device; and
  • any trade mark as defined in clause (v) of sub-section (1) of section 2 of the Trade and Merchandise Marks Act, 1958 or property mark as defined in section 479 of the Indian Penal Code or any artistic work as defined in clause (c) of section 2 of the Copyright Act, 1957.

Any person (natural or juridical), claiming to be the proprietor of any new or original design, can file for registration of such design[2].

Design Filing Trends- India

The Annual Report (2017-2018) released by the Controller General of Patents, Designs and Trademarks (CGPDTM) reported an increase of 15.9% in design application filings over the last year.

Applied to an Article

Besides the fundamental criteria of providing a visual appeal to the final consumer, a design must be applied to an article and not the article itself, in order to seek protection under the said statute. Article means any article/substance, whether artificial or partly artificial and partly natural, and capable of being made and sold separately[3] such as the iconic designs of Apple’s iPhone (Reg. No. D0842298) and Volkswagen’s Beetle (Reg. No. D0774952).  As per Section 6 of the Act, a design may be registered in respect of any or all of the articles in a prescribed class of articles, and registration of designs for multiple articles in the same class is not barred. Thus, if an article is capable of being manufactured or sold separately and visually appeals the eye, a design can be registered separately in respect of that article. Design protection can also be claimed for a ‘set’ of articles, which have same characteristics and are usually sold together[4]. This ensures a wide ambit of protection to the registrant and subsequently, aides in challenging infringement of a registered design in respect of same/similar articles.

Design Registration- India

The Act purports to protect novel or original designs, capable of being applied to a particular article that can be manufactured by an industrial process/means. Designs play an integral part in a consumer’s shopping experience, as often times, the articles are purchased on both utilitarian and aesthetic aspects. The important purpose of design registration is to ensure that the artisan, creator, originator of a design having aesthetic look is not deprived of his bonafide reward by others applying it to their goods. Hence, originality of a new design has been deemed as origination of a design from the author of such design and includes the cases which though old in themselves yet are new in their application[5]. Similar obiter was cited by the Hon’ble High Court in Shree Vari Multiplast India Pvt. Ltd. v/s Deputy Controller of Patents & Designs & Others that the law of design right does not prevent competitors from using same methods or principle of constructing to create competing designs, so long the competing designs do not have the same shape or configuration as that of the original design of the proprietor.

Therefore, some essential criteria for design registration, as per Section 4 of the Act, mandates a design to be:

  • New or novel;
  • Has not been anticipated by publication or use anywhere in the world, including in India or prior claimed in application elsewhere i.e. does not form a part of public domain or state of the art;
  • Significantly distinguishable from known designs or combination of known designs; and
  • Should not contain any scandalous or obscene matter

The subtext is evident on a bare perusal of the provision that the applicant for registration makes a declaration on a prescribed form, in lieu of the design for which registration is sought, and that the same is not vulnerable to any condition as stipulated under Section 4 of the Act[6].

Locarno Classification

The Locarno Agreement was first introduced in 1968 as a touchstone for uniform international classification of goods for registration of industrial designs. The Classification houses classes and sub-classes of 5,000 alphabetically-listed goods[7]. With India’s formal accession to the Locarno Classification Agreement in June, 2019

Representation of a design 

In order to effectively enforce one’s design rights, it is pertinent to represent all the elements of a design. If a design’s features are capable of segregation and each fulfils the essential criteria for registration, separate applications can be filed under the Act. In Vega Auto Accessories (P) Ltd. vs S.K. Jain Bros. Helmet (I) Pvt[8] , the Hon’ble Court opined that while comparing two designs, their sameness of the features does not necessarily mean that the two designs must be identical in all the aspects and should differ on none. Rather they can be substantially same even.

Enforcement of Design Rights

Duration of protection

Once a design meets the statutory conditions, it is registered and the proprietor of the design acquires a copyright over that design which lasts for a duration of 10 years from the date of registration (in cases where claim to priority has been allowed, the duration is 10 years from the priority date), further extendable to an additional period of 5 years upon a request made within the said protection period.[9] The date of registration, except in case of priority, is the actual date of filing of the application. In case of registration of design with priority, the date of registration is the date of making an application in the reciprocal country.

Infringement

A registered owner of a design acquires exclusive rights to apply the design in respect of article(s) for which registration is sought for. A fraudulent or obvious imitation of the design thereof, in respect of a similar article, for the purpose of sale or importation of such article, without the written consent of the registered proprietor, amounts to piracy of a registered design[10]. Publication or exposing such articles for sale with knowledge of the unauthorized application of the design to them also involves piracy, attracting pecuniary damages and injunction reliefs. A suit for infringement of copyright in design or piracy of registered design shall be filed before the Controller of Designs, and shall possess powers of a civil court in disposing off the same.

Marking of an article to obtain Relief under the Act

It is the duty of the registered owner of a design to affix on his article(s) on which registered design has been applied, with the prescribed mark or words or figures, which expressly denote that such a design has been registered with the Controller. A failure to do so renounces the right to file a claim of infringement and damages in the future. In such a case the registered owner must show proof beyond reasonable doubt that –

  1. All necessary steps to mark the article were taken; or
  2. Infringement took place after receiving knowledge of the copyright existence

 Overlap of protection vis-a-vis Design Rights

Design rights are notoriously famous for overlapping with other IP rights inter alia copyrights. Although, scope of protection extends only to the aesthetic features of a design and not to functionality, unlike under patents which grant protection to inventions resulting in technological advancements and functionality thereof.

By definition, the registered proprietor of a design acquires a copyright in the said design. There is no simultaneous protection for a design under the Copyright Act and the Designs Act, as Section 15(1) of the Copyright Act bars copyright protection to a registered design. Copyright in an unregistered design would also cease once the design has been reproduced more than 50 times by an industrial process by the owner or with his license, by another person[11].

Design Protection under the Paris Convention

India is one of the countries signatory to the Paris Convention. Therefore, the provisions for the right of priority are applicable. Based on a regular application first filed in any one of the contracting state, the applicant may, within a time-period of not more than six months (from the date of filing the first application in India), apply for design protection in other contracting states. The latter application will be treated as if it had been filed on the same day as the first application.

Penalty and Compensation

In reference to Section 22(2) of the Act, a base amount is provided by the legislation to the aggrieved party as statutory compensation i.e. a minimum of INR 25,000, which goes a maximum of INR 50,000 at present. The party also has the option to file a suit for recovery of damages based on the accounts of actual profits, alongwith injunction. In the recent case of Steelbird Hi-Tech India Ltd. vs. Asia Fibre Glass Products & Anr.,[12] wherein the Defendant was engaged in manufacturing and trading of helmets with identical design as those of the Plaintiff’s. It was contended that due to the uniqueness and novelty of the helmet’s design, the Plaintiff’s product had acquired a substantial reputation in the market, both India and abroad and is solely associated with the Plaintiff alone. Although, a fair observation that the design of a helmet may be restricted to certain shapes, the Hon’ble Court passed an ex parte permanent injunction, alongwith entitlement to the Defendant’s profits worth over INR 96 lacs. The case highlights the paucity in the provision and the judicial review exercised to rectify and interpret the relevant law in question as statutory compensation under Section 22 leaves the party open to receive a few pennies as compared to the actual losses and damages suffered, and the damages offered in a suit would rest entirely on the Court’s discretion upon producing an accurate account of infringer’s profits.

Conclusion

Designs play a crucial role in visually differencing one’s products from its competitors and with the rise of competition in the industry, protecting one’s designs is pertinent to attain an edge in the industry. The criteria of visual appeal to be a design, leaves an impression in the consumer’s mind and over the time, associates with the owner alone. The Designs Act, 2000, was formulated with an intent to promote innovation and creativity in sync with the global industrial and technological sector. The niche and extensive framework, with its streamlined application process and period amendments, ensures proprietors/owners are awarded statutory rights, in harmony with international treaties and agreements such as the 2014 amendment to the Designs Rules which brings in ‘small entity’ as a new category of applicant in addition to natural person. Moreover, we also look forward to have the Start-ups included in the list of applicants in the Indian Design Laws.

[1] Section 2(d) of the Designs Act, 2000

[2] Section 5 of the Designs Act, 2000

[3] Section 2(a) of the Designs Act, 2000

[4] Rule 2 (e) of the Design Rules, 2001

[5] Section 2(g) of the Designs Act, 2000

[6] Pentel Kabushiki Kaisha & Anr. vs M/S Arora Stationers & Ors CS(COMM) 361/2017

[7] FAQs : Locarno Classification; https://www.wipo.int/classifications/locarno/en/faq.html; accessed on May 18, 2020

[8] CS(COMM) 837/2017

[9] Section 11(1) of the Designs Act, 2000

[10] Section 22(1) of the Designs Act, 2000

[11] Section 15(2) of the Copyright Act, 1957

[12] CS(COMM) 1366/2016

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