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Do start-ups need lawyers?

India has an ever growing startup ecosystem. It is a common misconception that it is ok to work on available legal templates or take legal advice from CAs, and lawyers should be engaged only for complex deals. CAs can effectively advise a start-up on tax aspects but more than often do not take into consideration the applicability of other laws leading to start-ups being legally non-compliant. Accordingly, when lawyers do get involved, there is a vast backlog of things to do to rectify the legal mess that is created (not every mistake can be fixed!!), which is expensive, time consuming and inconvenient. Certain wrongful actions, inactions or non-compliances can be deal breakers or lead to a major drop in a start-up’s valuation.

Involving lawyers at an early stage helps one in availing the advantages of beneficial laws that have been enacted in favour of start-ups, making an organisation better structured, organised and legally strong, and dealing with legal risks more effectively. Further, the longer a lawyer is involved in a business, the better the lawyer understands the business enabling him to deliver practical, reliable and result oriented advice that is more aligned with a business’ goals and objectives. Lawyers can help a start-up in various matters such as company formation, IP creation, shareholders’ agreement, employee agreements, funding and regulatory compliance, to name a few.

As start-up entrepreneurs, one needs to focus on growing the business in the right direction.  Hiring the right corporate lawyer at an early stage of a business can do wonders for a start-up, and increase the chances of its success.

BY

Divya Jyoti Mehra

Partner – Corporate Law – Talwar Advocates

TRADEMARKS-2018 TRENDS AND CONCLUSION

INTRODUCTION

In the modern globalised economy, INTELLECTUAL PROPERTY is one of the integral parts, which covers copyright, Trademark, Design, Geographical indications, Patent, Industrial designs, etc.

Intellectual property registration and protection is essential to guard invention. In case no legal protection is provided to such creative innovations, then the individual would not be able to reap the full benefits of their inventions and creativity would suffer as a result.

Trademark, one of the branches of IP is a mark or symbol which differentiate the goods or services of one proprietor from that of another. In short trademark signifies the brand, name, with which are associated the goodwill and reputation of proprietor business. This makes Trademark registration an important part of IP.

In INDIA the trademark registration is looked after by CONTROLLER GENERAL OF PATENTS DESIGNS TRADEMARKS, MINISTRY OF COMMERCE AND INDUSTRY, GOVERNMENT OF INDIA. Government has taken every possible step to simplify the procedure of registration for trademark . Recently the controller general office has released its annual report for 2017-2018 which highlight the extent of activities undertaken by office.

 

The report shows that No. of application file with the office of the registration of Trademark have decreased marginally   from 278170 to 272974 (2017-2018). However, an important point to be mentioned here is that the no. of trademark registered by the controller general’s office has increased substantially from 65045 in 2015-2016, to 250070 in 2016-2017, to 3000913 in 2017-2018. Potential reason for increase is the signified registration and speedy disposal by the CONTROLLER GENERAL’S OFFICE.

This simplified procedure for registration has simultaneously resulted in an increase in the foreign applications, from 11440 in 2016-2017 to 25307 in 2017-2017, almost double. Out of the total foreign applications 13475 have been filed through Madrid System , which is a primary international system for facilitating the registration of  Trademarks in multiple jurisdiction around the world .Among the Indian applications, most are from the state of Maharashtra , with 63070 applications in total . The field of Advertising, Business management Business Administration office functions have witnessed maximum applications, with 26467 applications out of total 272974 applications, while the minimum have been registered for musical instruments other than talking machines and wireless apparatus, accounting for only 250 applications.

There are five branches of CONTROLLER GENERAL’S office including the head office at MUMBAI. The maximum applications have been filed at Delhi branch and minimum at Kolkata branch. As far as the number of Trademark registered are concerned, maximum have been in the field of medical , pharmaceuticals , veterinary and sanitary substances etc. with a total of 43371 trademark being registered while the minimum registration has been witnessed by musical instrument (other than talking  machines and wireless apparatus) with as low as 545 mark being registered.

From the registration fees being deposited by the applicants, the controller general’s office has generated a revenue of 286.11 cr. in 2017-2018, which is comparatively higher to  the revenue of 192.36 cr. generated in 2016-2017. The no. of Trademarks published in the journal have increased from 67796 in 2013-2014 to 423030 in (2017-2018). The no. of trademarks registered have increased from 67796 in 2013-2014 to 300913 in (2017-2018).

CONCLUSION

Controller General’s office not only looks after the registration of Trademark, but also review the application for renewal of trademark, scrutinizes the opposition filed by any third party against the trademark published in the journal and settle down the dispute related to the trademark registration if there is any . Thus the office of Controller General is the most important office dealing with all this issues related to not only Trademark but every other branch of Intellectual Property. 

10 Reasons why start-ups should understand how Intellectual Property system works

Start-ups are companies founded by forward looking individuals and dynamic entrepreneurs in search of scalable and repeatable business models. It is a nascent and a new business venture with the primary objective of developing a viable business model to meet newly emerging market place needs and addressing their problems.
Start-ups start with ideas nurtured by hard work and launched in a manner which results in quick and constant growth. Understanding Intellectual Property issues and legal ramifications is of utmost importance for start-ups to ensure their survival, growth and progress. A deep understanding of IPR is sine quo non-if they are not to be nipped in the bud. Start-ups have to be protected from the sharks who steal away the original ideas, inventions, the labours of creativity and the like. In today’s world IPRs major components include copyrights, trademark rights, industrial property, patents, geographical indications, plant varieties, industrial designs, layout designs of integrated circuits and the like.

Every start-up is particularly based on a novel idea and proper practice of one such idea is what transforms small start-ups into multibillion-dollar corporation. An example in the case is Thomas Eddison, the American Inventor and business man instrumental in developing many devices in fields such as electricity generation, sound recordings, motion pictures and many other fields. Today we are basking in the glory of landmark inventions like the electric bulb, etc. due to preservation of the inventions through IP. Some of the recent examples could be of Apple as developed by Steve Jobs. The core of IP Laws lies in protecting the idea or concepts that defines your start-up. An IP is actually an asset to your company and enhances your commercial value as a well-defined and well IP protected start-up attracts more investors and gradually more business.

Intellectual property laws provide a protective umbrella in avoiding infringement claims against the start-ups. An important component of IP protection includes searches regarding similar inventions or trademarks already prevailing in the public domain. Tracking such companies or individuals can insulate the start-ups from financial crises later due to patent or copyright infringements. The heavy investments in the companies would be negated and siphoned off due to high stake lawsuits.

IP goes a long way in preempting other companies and stopping them encashing upon the goodwill of start-ups. An IP protection is guaranteed by a registration certification which acts as a notice to public that a software, logo or a patent belongs to you. Before using an IP, other companies or individuals should first check the IP India website and database to see if a similar idea is already in use.

After successfully registering a patent, copyright or a trademark, an obvious presumption is created that an idea or property belongs to its holder. This gives the start-up an advantage in an infringement law suit as the IP registration will create a presumption in favor the holder in the legal proceedings.
Not protecting one’s novel idea or software which forms the core of the start-up could jeopardize the entire venture. An IP protection ensures stability and security to investors as they prefer investing in a start-up which is having a well-developed IP strategy.

If a start-up idea is based on an open source software, then the owner of such software should secure IP protection by way of copyright. Since open source software is generally free and offers expeditious development, the developer must ensure IP protection so that the start-up proprietary rights over the software are not lost.
Trade Secret Protection under IP Law helps startups to protect confidential information. It has been used to protect one of the most valuable secrets of the world including the Coca Cola recipe and Kentucky Fried Chicken (KFC). Thus, a start-up should enter into a written agreement with its employees and establish full-proof security protocols.

Safeguarding Intellectual Property which includes using copyrights, trademarks, and patents is much easier during infancy than protecting after that idea has fructified into a full blown success. IP protection not only prevents others from infringing or profiting from your business but also helps in attracting investors, suppliers, partners and more business as this form of protection offers more security with potential success.
Understanding of the copyright and its related laws would be essential in protecting the literary work, artistic and musical works, the computer software programmers and the works of architecture. It is essential for preserving monumental works like the famous David, the Leaning Tower of Pisa, the Taj Mahal, and other monuments down the ages.

The works of Shakespear, Tolstoy, Thomas Hardy, Rudyard Kipling and the like are also the Progenies of Copyrights whether in the legalistic terms or in the literal practical terms.
Start-ups need to develop an international perspective of geographical indications. They need to follow the dictates of the Paris Convention for protection of industrial property. The convention refers to the protections not as Geographical indications but as indications of source.

Then, Article 1(2) of the Lisbon Agreement mandates that member countries should provide protection to the appellations of origin of the products manufactured in other member countries.

Then, Section 3 of the TRIPS AGREEMENT deals exclusively with Geographical Indications. The ultimate objective of the agreement is to prevent misuse of the benefits of Geographical Indications. IP relating to Geographical indication is helpful in protecting products like Darjeeling Tea, Scotch Whisky, the Paris perfume, the Basmati Rice, the Swiss Chocolate, Banaras Silk and other products centralized to territories, regions or countries.
Further, India has Bio Diversity and protection against Bio-Piracy is of utmost importance. Awareness of the UN Convention on Biological Diversity (CBD) which was signed at Rio in 1992 is indispensable for start-ups with related products. Apart from conservation of biological diversity, the CBD aims at fair and equitable benefits arising out of utilization of genetic resources and transfer of technology.

Ravi Sodhi

NOVARTIS CASE: BOON FOR PATENTS AND PATIENTS

Novartis case is the landmark judgement not only in the field of IP but also for ‘aam-aadmi’. The historic date of April 1, 2013 witnesses the discourse around the world about a key feature of India’s patent regime. The core of the case focussed on the interpretation of section 3(d) of India’s patent law. In the impending verdict on Novartis Glivec, Supreme Court ruled against the company. The loss of Novartis was the impeccable news to Indians and the grade of many domestic pharma companies, especially Cipla and Natco. The verdict led to a decrement of stock price of Novartis. The judgment oozed out to be the harbinger of strong message that getting patents for drugs in India is not obvious. The verdict proved to be a solace for millions to have entree to medicines at low cost and banishing the concept of evergreening the patents by pharmaceutical industries.

The timeline:

1997- Patent application filed by Novartis AG at Madras patent office for beta-crystalline of GLIVAV.

2003- Novaris obtained EMR for 5 years in order to market Glivec, hence preventing other pharma companies from manufacturing generic version of the same-price thus soaring from Rs 10,000 to Rs 1.2 lakh.

2005- Amendment of patent law in comply with TRIPS agreement CPAA(cancer patient aid association)filed a pre-grant opposition against  Novartis patent application.

2006- Novartis was refused grant of patent by Madras patent controller, leading to manufacture of generic version of drug by other pharma industries. Writ petition was filed at the Madras high court by Novartis.

2007- Matter transferred to IPAB. High court rejected the writ petitions.

2009- IPAB rejected Novartis appeal. Novartis filed special leave petition in Supreme Court.

2013- SC dismissed Novartis petition.

“the Indian SC’S decision on section 3(d) in the famous Novartis case created a precedent and has helped us in our campaign for affordable medicine”, says Loon Gaugte, an Indian activist, regional co-ordinator, South Asia of International Treatment Preparedness Coalition(ITPC) and one of the founders of DNP+. However, the challenges and difficulties persist. The study report titled ‘Pharmaceutical Patent Grants in India’ explains how our safeguards against evergreening have filed, why the system must be reformed, and analysis of the challenges that have led to section 3(d) being underutilized despite the landmark judgment of SC.

BRAILLE UNDER COPYRIGHT LAW

Copyright is an intangible right given to the author of an original artistic work.  It protects the work from reproduction or publishing for monetary gain without the consent of the owner. The words generally used while discussing infringement are reproduction, translation, adaptation, derivation and transformation. Though it may seem that they have same or similar meaning, in the theory of copyright, they have a different status.

In the case of a literary work, copyright means the exclusive right:

  • To reproduce the work
  • To issue copies of the work to the public
  • To perform the work in public
  • To communicate the work to the public.
  • To make cinematograph film or sound recording in respect of the work
  • To make any translation of the work
  • To make any adaptation of the work.

Therefore, a movie adaptation of a book cannot be made without the consent of the author. Similarly, translation also infringes copyright as they are essentially a reproduction of someone’s original work for monetary reasons. Raising eyebrows, this has given heat to the recent discussions as to whether an existing work when translated into Braille will account to a copyright infringement or not?

CAN BRAILLE INFRINGE COPYRIGHT?

The questions which prompt in mind are:

  1. What is Braille-translation or transliteration?

Braille is a palpable reading and writing system used by blind and visually impaired people. Represented by the patterns of raised dots that one can feel with their fingertips, it enables the visually impaired to study, regardless of the language and is hence acting as a universal code for all the languages.

Translation implies the conversion from the original language to a different alternate language. Since Braille is not a language, the term translation cannot be used in this context. Taking an example, if we convert “Bhagwan”( in Hindi) to Braille, the output cannot be regarded a  translation as it remains in Hindi and does not feature conversation into any other language such as English. Therefore, such conversion is not considered as a translation and is instead termed as a transliteration. This way, Braille does not violate section 14(a)(v) of the copyright act, 1957 and hence such conversion shall not attract infringement charges.

  1. Does conversion of literary work into Braille come under the scope of adaptation and reproduction?

Adaptation involves the preparation of a new work in the same or different form, based upon an already existing work involving re-arrangement or alteration of the same. If literary work is converted into Braille, it will lead to the violation of rights under section 14(a)(vi).

Will conversion of literary work into Braille lead to reproduction of work under section 14(a)(i)?

Interpretation of ‘reproduction of work’ is debatable and the conversion of literary work into the six-dot Braille code will solely, and exclusively depend upon this interpretation. Braille is technically sticking to the contents, but for expression to be categorized as reproduction, conversion may remain true to content or expression or both. The new cause (zb) added to section 52(1) of the copyright act, 2013 provides for fair use of the work for the benefit of the disabled; facilitates adaptation, reproduction, issue of copies or communication to the public of any work in an accessible format.

Since Braille is a part of accessible format, section 52(1)(zb) suggests that the expression “adaptation, reproduction and communication to the public” can be used with respect to it hence, generating the clarity  on  Braille fitting into the scope of adaptation and reproduction.

Whether Braille can cause copyright infringement?

The district court in Authors’ Guild v. Hathitrust, 2013 U.S. Dist. LEXIS 22370, (S.D.N.Y. 2013), had held that the digitization of millions of books made available to people with disabilities was a transformative use, even though each of the books’ contents was reproduced in their entirety and without any content modification. Should the court of appeals affirm this holding, the court would be indicating that there need not be any kind of expressive transformation in the copyrighted works and the mere putting of the copyrighted works to a different purpose from that which the copyright owners intended shall be considered.

In Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, (1985), the Supreme Court held that the act of the news magazine, The Nation, “scooping” portions of President Gerald Ford’s unpublished memoirs, just weeks before its authorized publication in a rival magazine amounted to copyright infringement. The court held that the fair use defense did not apply to The Nation’s actions. The court noted that “[every] commercial use of copyrighted material is presumptively an unfair exploitation of the monopoly privilege that belongs to the owner of the copyright.” Furthermore, the court explained that “[t]he crux of the profit/nonprofit distinction is not whether the sole motive of the use is monetary gain but whether the user stands to profit from exploitation of the copyrighted material without paying the customary price.”

Analyzing the above judgments, we may conclude that the conversion of literary work into Braille will be covered under copyright infringement if the proper license is not taken.

EMERGING TRENDS OF IP: COPYRIGHT AND TATTOOS

Copyright is an exclusive legal right given to the creator on his tangible work that entitles him to recreate, reproduce or publish the work for monetary gains or otherwise and also prevents someone else from doing the same. A creator can protect his original work of authorship including literary, dramatic, musical and artistic work.

The issue of the copyrightable nature of tattoos gained attention because of the 2011 movie, Hangover Part II. One of the characters of the movie had a replica of the famous Mike Tyson face tattoo. The Tattoo artist had already registered the design with the United States Copyright Office and thus, sued Warner Bros. for copyright infringement.

Even though the parties, later on, settled the case with confidential terms and agreements, it raised many questions.

The questions being:

Are tattoos copyrightable?

The right of ownership?

What amounts to infringement?

  1. Are tattoos copyrightable?

As mentioned above, all the original work of authorship is protected by copyright and no international convention or the Indian Copyright Act, 1957 explicitly excludes tattoos. Thus, tattoos are copyrightable and hence many tattoo artists are getting their original designs copyrighted.

  1. Right of ownership?

The second question involved is who would be the owner of the copyright, the tattoo designer or the person on whose body the tattoo is engraved?

The U.S Copyright law protects the original work of authorship and thus the right of ownership of tattoo rest on the tattoo designer.

Most legal scholars agree that a tattoo artist offers his client an implied license to display the copyrighted work, but that license does not necessarily include all of the rights afforded under copyright laws. The client may not have the right to make reproductions or derivatives of the tattoo without the artist’s permission.[1]

In the UK too, if the person is getting a tattoo that is not his original design, the ownership would lie with the tattoo designer with no provision of “fair defense” to rely on.

In India, under Section 17 of the Indian Copyright Act, 1957 the first owner of the copyright is the author of the work (in this case the tattoo artist).

However, the law regarding ownership of copyright is not definite and still in it is primitive stage. This is primarily because there is no statute or judgment to seek guidance.

  1. What amounts to infringement?

In case of Warner Bros. even though no judgment was passed, in her comments, Judge Perry supported the rights of tattoo artist and stated that a tattoo can be subject to copyright if it   an original work of authorship. She also refused to accept Warner Bros. strong contention claiming the use of tattoo as a parody. According to her, the tattoo depictedan exact replica and thus cannot be called a parody just because it was featured in a comic film.

Though it may fall in the category of fair use in case of private users, the usage becomes commercial when replicated by a company or when the design is worn by a celebrity, and thus, may lead to infringement.

CONCLUSION

The law regarding tattoos and their copyright is still ambiguous. Till date, all the high profile cases regarding the issue have been settled out of court. Thus, initiating the conversation but leaving everybody without any definite conclusion.

In a time where IP rights are getting recognized and artists are given due credit for their work, there is no reason to exclude tattoo artists from enjoying the privilege of these acts. Many tattoo artists are getting their original work registered, but due to the lack of specific legal guidelines, the extent of its implementation remains questionable.

[http://www.jetlaw.org/2017/09/22/your-skin-my-copyright-who-owns-the-copyright-to-tattoos/

Working Statement- A peculiar Requirement under the Act

Introduction

The Indian Patent act is well known for its impartial approach towards Innovation, enforcing the monopoly rights to the patentee and making sure the innovation ends up adding to the betterment of the community.
The Act not only guarantees monopoly to the patentee but also ensures that the invention is utilized to its fullest extent for meeting the requirements of the community without any undue delay. This enforcement contributes to the promotion of innovation and circulation of technology in a manner to benefit the community both socially and economically.
To ensure the stated principles, Section 146 of the Indian Patent Act mandates all the right holders/patentees to submit their working statements by the end of each calendar year. Thus, acknowledging if the patent has worked commercially implemented or worked within in the territory of India, at a reasonable cost and as per the requirement of the public or not.

Enablement and Establishment

According to Section 146(2) and Rule 131(1), The working statement is to be furnished on the prescribed Form-27 providing the details of the commercial working of the patent in India. According to the patent office annual report, during 2016-17, for the total 48765 patented inventions, 42870 working statements were received, out of which only 11318 patented inventions were stated as working. Though Section 122 of the Indian patent act explicitly states that “If any person refuses or fails to furnish- he shall be punishable with imprisonment which may extend to six months, or with fine, or with both.”, until now no action has been taken by the patent office against any such patentee.
The main obligation of the patentee is to furnish the following details in the Form 27:

1. Did the patented invention: Worked / Non-worked?
1. if not worked; the reason for not working and steps being taken for working of the invention.
2. if worked; quantum and value (in Rupees), of the patented product.
2. Manufactured in India.
3. Imported from other countries (give country wise details)
4. Licenses and sub-licenses granted during the year
5. State whether public requirement has been met partly/ adequately/ to the fullest extent at reasonable price

Since the above information is confidential in nature, the patentee holds a fear that it may be misused because, as per Section 146 – Controller may publish the information received by him under sub-section (1) or sub-section (2) in such manner as may be prescribed.
For the same reason, patentee tends to provide as minimal information as possible. Further, in many cases, it is impractical to collect all the information to be furnished in the Form-27 and only imparts an extra burden and incurs added cost to the patentee.

Conclusion
The provisions provided in the act defines the submission of working statements as a duty of every patentee. It enables the government to provide certain benefits to the patentee while ensuring the advantages of the invention are enjoyed by the public. Going forward, continuous efforts are being made by the Patent Office to make it more authentic and a considerable rise has been observed in the filing trends for recent years.

Virtual Reality: Virtues and Vices

As our world moves through a phase of technological revolution, Virtual Reality has become the new magic word among technology geeks. Virtual Reality (VR) is used to describe a three dimensional, computer generated, artificial environment which the user believes and accepts as a real environment. Barring entertainment, VR possesses a great potential of transforming the future of numerous fields with medicine, business, architecture, designs and manufacturing being some notable mentions.

Medical professionals have already started using VR to teach their students how to perform surgeries, ease patient’s pain, and treat various social disorders. VR is also helping children and teenagers suffering from autism to overcome their fears of socializing. Automobile manufacturers are employing VR to test the safety of their cars. Architects are now able to build stronger buildings with the assistance of VR. Among its numerous users, travel agencies have also had their fair taste. Using VR, travel agents are now able to pitch various travel destinations to their customers in a very enchanting manner.
Irrespective of the innumerable advantages of using VR, there exist few disadvantages too. Its high cost, technological limitations, appended with incidents of causing motion sickness in users cannot be ignored, and challenge its projection as a “user friendly” technology.

VR is gaining applauds in the field of intellectual property. Originality is the sine qua non of intellectual property. Indian law doesn’t provide for any law to test the originality of the work. However, the degree of creativity marks the work as original. Since there is no definite concept of originality, there exists different doctrines for the same.

The two main doctrines followed in the area of intellectual property are “sweat of brow” and “modicum of creativity” doctrine.

According to the doctrine of “sweat of brow”, the author gains rights through simple diligence during the creation of the work and substantial creativity is not required. For Example, the creator of a telephone directory or a database must have a copyright over the product not because such a compilation of data showcases any creativity, or the author has expressed anything original, but merely because of the effort, time and money invested by the creator to collect and organize all the data in a specific manner. However, such a compilation must be the work of the author himself and must not be copied from another source.

The other doctrine, modicum of creativity, stipulates that originality subsists in a work where a sufficient amount of intellectual creativity and judgment has gone into the creation of that work. The standard of creativity need not be high, but a minimum level of creativity should be there for copyright protection.
India actively followed the concept of “sweat of brow” for a considerably long time. Till 2007, Indian courts held compilations to be copyrightable. However, in Eastern Book Company & Ors Vs. D.B. Modak & Anr; 12 December 2007, Hon’ble Supreme Court discarded the doctrine of “sweat of brow” and shifted to “modicum of creativity” approach. The facts of the case is that SCC, the Supreme Court Case reporter, was aggrieved by other parties infringing their copyright and launching software containing the judgment edited by SCC along with other additions made by the editors of SCC like cross references, head notes, the short notes comprising of lead words and the long note which comprises of a brief description of the facts and relevant extract from the judgments of the court and standardization and formatting of text, etc.

The notion of “flavour of minimum requirement of creativity” was introduced in this case. It was held that to establish copyright, the creativity standard applied is not that something must be novel or non-obvious, but some amount of creativity in the work to claim a copyright is required. The Court held that these inputs made by the editors of SCC can be given copyright protection because such tasks require the use of legal knowledge, skill and judgment of the editor. Thus, this exercise and creation thereof has a flavour of minimum amount of creativity and enjoy the copyright protection.

From then onwards, Indian courts are following “modicum of creativity” approach and completely rejected the plea to protect mere compilations. In order to attain intellectual property right, the work has to be original and not merely a copy of original work. Thus, the primary objective of maintaining a balance between labour of the author and original expression is ensured.

Copyright Directive – Radical Copyright Protection Regime to takeover in European Union

After adopting Digital Single Market (Proposal) on 6th May 2015, the European Union Commission is out with its Proposal for a Directive of the European Parliament and of the Council on Copyright in Digital Single Market, Article 13 of which is a breakthrough of copyright norms worldwide. It has been reiterated as follows:

“Article 13.”

Use of protected content by information society service providers storing and giving access to large amounts of works and other subject-matter uploaded by their users

1) Information society service providers that store and provide to the public access to large amounts of works or other subject-matter uploaded by their users shall, in cooperation with rightholders, take measures to ensure the functioning of agreements concluded with rightholders for the use of their works or other subject-matter or to

prevent the availability on their services of works or other subject-matter identified by rightholders through the cooperation with the service providers. Those measures,

such as the use of effective content recognition technologies, shall be appropriate and proportionate.”

This means that all the Internet Platforms that hold a large amount of user-uploaded material like Facebook and Youtube are now in charge of policing the content before its publication into their platforms to avoid copyright infringement, and will have no more ‘Neutral Intermediary’ protection they usually availed by E-commerce Directive in EU.

The proposal above which mandates a content recognition technology is contradictory to EU’s E-commerce Directive. Recital 47 of the e-Commerce Directive mandates that “The Member States are prevented from imposing a monitoring obligation on service providers only with respect to obligations of a general nature; this does not concern monitoring obligations in a specific cases.” But this recital can be easily circumvented because of its vague language aided with the language of Recital 48 providing that nothing can stop the member states to apply reasonable “Duty of care” to the service providers.

Recent Youtube Copyright Infringement

An uploader published copyright protected (allegedly stolen) videos of Plus 4, An Austrian Television Station and sued YouTube for allowing it to be published. If a similar judgment were to happen in the United States, the implications could be huge.

YouTube has been sitting safely under the umbrella of the Digital Millennium Copyright Act‘s “Safe Harbor” clause for years. After Viacom sued YouTube in 2007 for hosting around 79,000 videos that featured some Viacom-owned content, the court ruled in favor of the video platform because it could answer “no” to three questions: Did YouTube have “knowledge or awareness of any specific infringements”? Did YouTube purposefully shield itself from knowledge of the infringements? And did YouTube have the “right and ability to control” activity on its site that led to those infringements? In essence, answering no to all of these questions makes YouTube a “neutral intermediary,” exactly what the Vienna court believes it is not.

(https://www.tubefilter.com/2018/06/11/austrian-court-youtube-copyright-infringement-case/)

Therefore, the contentious Article 13 of the Copyright Directive goes for a vote on 20th June 2018. This Article if enforced is likely to cause uproar amongst digital activists and also make the copyright provisions highly strict and complicate publications and broadcasts, and will also lead to erasing away of existing content like memes, music covers, etc, as a non-transparent filtering device will be mandated to be installed by such hosts.

Bitcoin Trademarked in the UK – Should the Bitcoin Community really worry?

A company in the U.K. has trademarked the term “Bitcoin” pressing to enforce the trademark’s use which is reported to scare crypto-currency enthusiasts. Is there really a need to be dreaded? Let’s analyse.

The story began with an Etsy (An E-commerce website headed in Brooklyn) seller getting the letter from the lawyer representing the Bitcoin trademark holder in relation to Bitcoin-branded clothing items. It stated the following:

It has come to our client’s attention that you are offering for sale a variety of clothing bearing the Bitcoin trademark on Etsy.co.uk. [Our Client] has not authorised your use of the Bitcoin trademark on and in relation to clothing. Such use, therefore, amounts to trademark infringement pursuant to s10(1) of the Trade Marks Act 1994,” the letter read.”

But in an act of goodwill, the letter goes on to note that though the trademark holder could take action against the seller but it gave the seller 14 days to remove the infringing goods instead.

Cryptocurrency sites went through a shock over the fact that a company has not only trademarked bitcoin but were also enforcing the trademark, with one site even going as far as saying the trademark holder will “have authority over everything Bitcoin, at least in the U.K.”

The Legal Truth

The truth is not even near to the speculations, as the Trademark law is clear on the point that Trademarks relate to specific goods and services. It is considered as a pre-requisite in Trademark law. Trademark used in the present case, i.e. UK00003279106, registered by a company called A.B.C. IP Holdings South West only covers three classes of goods: U.K. classes 25, 32 and 33, covering clothing, beverages, and alcoholic beverages, respectively.

The Particular trademark only pertains to the above-mentioned classes and the trademark holder has absolutely no authority and effect over anything to do with Trademark of the “Bitcoin” outside the aforementioned classes.

And since it is not something unprecedented, therefore, the owner cannot enforce his right over other classes before obtaining a registration to the same effect. Further, a search of the U.K. Intellectual Property Office trademark registry finds multiple trademark registrations for bitcoin, such as UK00003029238 from 2013 which pertains to “chocolate and confectionary.”

Still a fact for the ‘Cryptocurrency Community’ to worry

A trademark registered with status: WE00001288610, covers a lot of Bitcoin-related services

The protected trademark is registered to Japanese Bitcoin exchange “bitFlyer” and covers the use of bitcoin in six different classes. It covers over a thousand items, however, the most important and disturbing things is that it includes the use of bitcoin in computer programs, advertising, financial services, electronic commerce and much more, all of which are vital parts of bitcoin itself.

There appears to be no record of “bitFlyer” having actually attempted to enforce its trademark in the past, and it’s not clear it ever would. But if the cryptocurrency community wants to get its knickers in a twist over trademarks, this is where people should be looking and not at a two-bit seller, i.e. Etsy, who is engaged in selling T-shirts.