Aristo Wins Order Barring Innova CapTab’s Use of ‘Montinal’ Mark

Innova Cap Tab was accused of copying a trademark.

The Bombay High Court has restrained Innova Cap Tab and its sister companies 
from manufacturing and marketing any medicinal preparation or product by using the mark ‘MONTINAL’, which is identical to a registered trademark of Aristo Pharmaceuticals Pvt Ltd.
The order was passed by Justice S J Kathawala recently after Aristo approached the 
court accusing Innova Cap Tab and others for infringing its trademark.
The court observed that Aristo has made out a prima facie case in their favour. 
The balance of convenience is also in their favour. “In view thereof, pending the hearing and final disposal of the Suit, the defendants (Innova Cap Tab) are restrained from infringing 
the trademark of Aristo Pharmaceuticals Pvt Ltd,” said justice Kathawala.

In December 2002, Aristo got the trademark ‘MONTINA’ registered in its name. 
In June 2013, it started manufacturing of the preparation in the form of syrups and
 tablets and has been selling it since August 2013.
However, in September 2013, it came across an identical preparation MONTINAL, 
which was being sold by Innova. This prompted Aristo to move the HC.
Innova claimed it had got MONTINAL registered in 2008, saying the prefix ‘MONT’ 
was taken from the principal drug ‘Montelukast’ and ‘INA’ from the name of the company 
ANIKEM. It also claimed that at the time, Aristo’s products were not available in 
the market.The court accepted Aristo’s contention that Innova had merely stated 
as to how it had coined MONTINAL and not raised a specific plea to prove that the 
mark was generic. Once a mark is registered, it is not open to any person so long as
 it remains on the Register. To contend that the same has been derived from its generic drug is invalid, Justice Kathawala added.

Grandmother of all trademark disputes ends in HC

The term 'aachi' in Tamil means 'grandmother' and hence such a word of common use could not be a monopoly of a particular company, the Madras high court has said, rejecting Aachi Masala Foods' plea to stop a cargo company from using the same name.

Confirming a single judge order dismissing a suit filed by Aaachi Masala group recently, a division bench comprising Justice Satish K Agnihotri and Justice M M Sundresh said: "The word 'aachi' in Tamil means grandmother. Therefore, such a word, which is of general use, cannot be a monopoly of Aachi Masala Foods alone."

In its appeal, Aachi Masala Foods contended that Aachi Cargo Channels Private Limited had obtained exclusive right to use Aachi trademark in 1999 and later got Aachi trademark for 51 other products as well.

Aachi Cargo, however, contested the submissions saying their area of operation had nothing to do with the food business of Aaachi Masala. Noting that there is no likelihood of their name causing confusion in the minds of the public, they said the appeal deserved to be dismissed.

The bench, concurring with Aachi Cargo's submissions,' said the Aachi label reflecting masalas and spices had nothing to do with the service rendered by the cargo operators. Declining to grant an order of interim injunction restraining Aachi Cargo, the judges said the question of infringement of trademark would arise only if an unregistered proprietor used a registered trademark which was likely to cause confusion on the part of the public.

Posted in TOI

Click the link below:

http://articles.timesofindia.indiatimes.com/2013-12-02/chennai/44656573_1_trademark-cargo-company-single-judge-order

Haleem soon to be tagged in International Geographical Indication (GI)

The savoury Haleem may soon be sold in Europe with the Hyderabadi tag proudly displayed on the packaging if makers manage to bag an international geographical indication (GI) tag for it.

Proponents of intellectual property rights say that several products see new innings in their marketability when they get a GI tag, which ties it with the geographical area and renders it unique. Notable for bagging the tag are Tirupati Laddu, Pochampally Ikat and Nirmal Toys. Haleem was the only product from the city that was awarded the tag in 2011, but only within the geographical boundaries of India. Now the makers want an international GI tag to improve upon its Rs 100 crore market.

The tag renders a product unique and authentic. Only registered makers can sell it, protecting the manufacturer from imitation. Consumers can be assured that the product is authentic and is of the quality they expect," said Subhajit Saha, Intellectual Property Rights Consular and a registered patent agent at the Andhra Pradesh Technology Development and Promotion Center, which helps artisans and product-makers apply and bag the tag. He added that the tag gives a product a face-lift and if properly branded, could also help in sales promotion.

"The applications for the tag are filed with the geographical indication registrar in Chennai. Among the applications pending from the state are Machilipatnam Bandar Laddu, Machilipatnam imitation jewelry, Nizamabad Black Clay Pottery and Banganapalle Mango. The famed Hyderabadi Biryani has been on the waiting list for nearly four years now.

S Ravi, who was part of the team that helped Haleem Makers Association bag the GI tag, reveals the plan to get the tag for the makers of Lukhmi, a stuffed-meat starter. "Apart from Lukhmi, I am also planning on helping makers of Naan Katai and bangle sellers of Laad Bazaar bag the tag," he said.

As for Haleem, plans are afoot to apply for a tag with the European Union and UK. "Given the large number of expatriate Indians in UK, the product will become really popular there," MA Majeed, president of Haleem Makers Association said.

For more details click the link below:

http://articles.timesofindia.indiatimes.com/2013-12-31/hyderabad/45738469_1_gi-tag-tirupati-laddu-hyderabadi-biryani

Copyright for Computer Software

What is Copyright?

Section 14 of the Copyright Act, 1957, gives a  lengthy definition  of what Copyright  means. For the  purpose of brevity and easy understanding  the definition under the Act  is analysed as under:

1.         Copyright is a bundle of exclusive rights.

2.         Its given by the law

3.         Given to the creator of  literary, dramatic,  musical and artistic works.

4.         Exclusive right  to engage in and license others  to  reproduce the works in any  material form, to  make copies of  work to the public,  to perform the work in public, communicate the work to public, to make translation of the work or an adaptation of the work. 

Copyright in respect of Computer programmes.

Section 2(ffb) and Sec 2(ffc) of the Act define “computer” and “Computer program”. Copyright Act specifically  protects  Computer Programs.

Section 14(b) of the Copyright  Act defines what Copyright is with respect to Computer programs.

Another Section, being Section 40, which relates to  extending copyright to foreign works , may also have  relevance  due to the increasing access to the  Internet in the Country.

In relation to  copyright  of Computer Software, the right given to the author of the program are:

1.         to do any act as relates to the work being a literary, dramatic  or musical work . (Acts here indicate  acts like  reproduction of the work, issuing  copies of the  works to the public , perform etc.)

2.         to sell or give on hire  or offer for sale  or hire, any copy of the computer program, regardless of whether  such copy has been sold  or given on hire  on earlier occasion (This allows the commercial distribution of the work).

Object code and Source Code

Under the Copyright law Computer Software can be divided into  two parts:

1.   The Source Code :  This is the working part of the program. Source codes are entitled to copy right protection  in Indian under the Copyright Act, 1957, under Section 14(b).

2.    The Object Code :    This is the way  the software is presented or the way the software would look (perceived from the screen of the computer). Under the Copyright Act Sec 2(ffc), the definition of  Computer program is exhaustive  and hence  the object code also becomes eligible  for copy right protection.

Who is the Owner of the Copyright:

A.     Individual Programmer:  An individual author who write the program is the sole owner of the copyright in the program.

B.     Joint Programmes: A program developed by several individuals jointly,
      where the contribution of one author is not substantial from the
      contribution of the others, all the individuals are joint authors and hold the
      copyright in the program jointly.

C.     Contract of service as an employee: In case of programs made  under the
      contract of service as an employee, such employee, the employer will be
      the first owner  of the copyright unless there is an agreement to the
      contrary.

[Note: It is always advised that an deed of assignment  of the copyright  in the specified work  be assigned  by the employee to the employer vide an Assignment deed , which  shall be in writing, which shall specifically identify the work for which the assignment is sought for and which shall be duly signed by the employee].

D.     Contract of service as a contractor

In  case the program is written  by people who have been hired  and appointed as independent  contractors on contract  for service, such contractors shall have the  first right as owners to the copyright in the subject program unless  such copy right is expressely assigned by the contractor in favour of the person who taking the contractors’ service.

Assignment of Copyright

The owner of a copy right in an existing work or a future work can  either wholly or in part assign, to any person, the copyright vested in the subject work in the following manner:

A.   for the entire world, or specific country or territory;

B.   for the full term of the copy right  or part thereof;

C.   relating to all the right comprised in the copyright or  relating to part of
     the rights.

Why is Software easy to be   copied:

1.   Computer program is valuable. The economic value  adduced  to copyright of the program is substantial in view of the growing market size and the demand.

2.   Software or program is easily reproducible and  can be easily copied.

3.   Software or program can easily be converted from one computer language  to another

4.   Cost of copying  for most system is low.

5.   Even when direct copying is not possible, computer programmers can often reverse engineer the  program.

6.   Above all  the copier of the program  can copy  the subject  program without any loss in quality. Thus retaining a major portion of  its functionality.

How to protect the copyright in a program:

Different forms of Intellectual property like Copyrights, Trade secrets agreements, non disclosures,  licensing agreements and in some cases even patents serve  as protection.

Copyright for a the software or program can  be done by simply registering the subject work with the Registrar of the Copyrights, thus  substantiating that you are the first author of the subject work.

Registration with the registrar would be helpful in a infringement suit. The register of the registrar would be a prima facie evidence and the  extract of the Register, certified by the registrar would be  admissible in evidence .

Ashok Ram Kumar

Ashok Ram Kumar is the Senior partner at IP Markets and can be contacted at ram@ipmarkets.in

Practical and Legal protection of Software and Computer Program/s

Article I wish to  discuss both  the practical  and legal methods of  protecting  Software and Computer Program/s from unauthorized  copying and use.

• Computer Program/s and  Software  are  new forms of  Intellectual property   and are of growing importance in today’s world.
• IPR (Intellectual Property Rights): protection for Computer Program/s and  Software had traditionally been  restricted to  copy rights.
• Computer Program/s and  Software are entitled to  be protected under the Copy Right Act  as  “literary work”.  Literary work includes “computer programmes, tables, compilations including computer data-base”
• Section 2(ffc) of The Copy Right Act defines  computer program as a set of instructions expressed in words, codes, schemes or any other form, including a machine readable medium capable of  causing  a Computer  to perform a particular task or achieve a particular result.
• Software  is easily reproducible since it can be copied cheaply, very fast without loosing on the quality  and once copied  one language can be converted to another.
• Copyright infringement is fairly easy to get away with  since it can always be claimed  that the  source codes, algorithms etc could be used for  different implementations.
• The intentional use of moles of special identities  in the Computer Program/s and Software called as “seeds” or “signatures” by the author in a Computer Program/s and  Software, when  combined with the three main vehicles of  of legal protection: copyright, trade secrets and  contracts, can create a powerful defense against  the “computer pirate”
• The Indian Software Industry, is  one of the top  most foreign  exchange earner for the country and hence it needs to take a closer  look and safe guard its market and intellect of its programmers , more so since Commercial benefit  that are being derived by this Industry is substantial and the nature of protection that needs to be provided is very important.

There is a greater need for the Software Industry to   change its orientation and stress for the protection of its Computer Program/s and  Software, for only by doing so there is scope of  original product development  and the Industry can legally maintain a monopoly  in a particular area of  competence  to the exclusion of the competitors.

Where does India stand on - COPYRIGHTS:

• The TRIPS Agreement, signed and ratified by  India in 1996.
• It prescribes certain minimum standards of protection for Copy Right.
• Though the  1994 legislation  more than meets the WTO requirement it is felt that the enforcement is weak. The WTO requires that the India Act extend protection to literary, scientific and artistic works.
• In 1999, the Copyright Act  was amended with amendments to definition  of literary work, computer programmes, increased  the term of copyright of performers from 25 to 50 years.
• New provisions have been inserted pertaining to the powers of the Central government to apply the provisions  relating to broadcasting organizations  and performers in certain other countries, and powers to restrict  rights of foreign broadcasting organizations and performers.

What is a COPYRIGHT ?

• Copyright protects the expression of the idea and not the idea itself. Originality requires the author  of the specific work to contribute  something more than a mere “trivial” variation  which is recognizably “his own” and the work should  evolve from the intellect of the author.
• The work shall be the  result of mental labour  and shall not be altered or  edited repetition of an already existing work.
• Copyright doctrine envisages , that the work must show some “creativity” in order to meet the originality test and it is not subject to  copyright if the work merely  copies an existing work.

Why a Computer Program/s and/or  Software is hard to legally protect:

• The basic problem in protecting  Computer Program/s and  Software  is that the information compiled  is frequently a public knowledge, understandably so since the user  has to know how to use it.
• Under traditional  concepts of literary copyright, the program  contained in a compilation, may sometimes  not be protected from copying
• Only the co-ordination and arrangement  of the program  may  be protected and even then there must be some  originality to the collection  and arrangement for it to be protected.

Legal Protection currently available:

• Law and the courts  in general are struggling to keep up  with the rapid changes in technology by  passing new enactments, but with considerable delay.
• Different  forms of Intellectual property protection can be  extended and are appropriate  for the individual components in a Program. There are essentially four ways to protect a computer software and program : copy right, patents, trade secrets and contracts.
• Program function can be protected by  patents and trade secrets.
• Mostly Copyright protection  and to some extent  designed patent protection  is used for  program interface like file formats, Application Program Interface communication protocols and specifications.
• For Program  codes  copyrights and  licensing agreements  provide the protection
• Ideally, all four of these legal means can be employed , along with practical non-legal methods, to provide the maximum protection against the piracy of Computer Program/s and  Software.
• Indian Copyright law provides  the frame work and basic  foundation  for legal protection by securing  for limited time  to the authors and inventors  the exclusive rights  in their respective writings and discoveries.

Copyright Protection:

• Computer Program/s and  Software are entitled to  be protected under the Copy Right Act  as  “literary work”.  Literary work includes “computer program/s, tables, compilations including computer data-base”
• Section 2(ffc) of The Copy Right Act defines  computer program as a set of instructions expressed in words, codes, schemes or any other form, including a machine readable medium capable of  causing  a Computer  to perform a particular task or achieve a particular result. piracy of Computer Program/s and  Software.

Trade Secret Protection:

• Trade Secret  had  long been  the favorite protection  by the software industry. Most of the software is protected at least to some extent  by trade secrets. Adding trade secrecy  protection to  Computer Program/s and  Software   can provide significantly a greater legal  rights.
• Trade secret  is knowledge  which a person  or company  acquires  through it own efforts  and which has some value to  it. This  knowledge  is kept a secret  from competitors  because it is  felt that this  information  provides some type of competitive advantage.
• Trade Secret Information,  include information regarding  a formula, pattern, compilation, program, device, method, technique or process. The information should derive independent economic value , actual or potential, not being generally known to , not being  readily ascertainable  by proper means by, other  persons who can obtain economic value  from its disclosure or use;  and is the subject  of effort  that reasonably  warrants under the circumstances  to maintain its secrecy.
• A Computer Program/s or   Software   is a compilation  which derives  economic value, it is  intellectual property  which has to receive and is  eligible for  trade secrecy protection. The common legal devise for implementing  the principle  of trade secret  is the non  disclosure and  secrecy agreement.
• The common legal devise for implementing  the principle  of trade secret  is the non disclosure and  secrecy agreement.
• It is a common practice with the Indian Companies  to take a  declaration or enter into a  non disclosure and secrecy agreement with its  employees. Once having signed this  the employee is obliged to keep  as a secret  the knowledge gained from his former  employment in any future   employment  more so with a  competitor.

Protection by Contract :

• A seller of the Computer Program/s and  Software  can require that any purchaser enter into a written contract  as a condition of purchase  of the Computer Program/s and  Software.
• The written agreement could expressly provide  that the purchaser will not disclose the software/program to any one, restrict the use of the product for himself, not to make any copies of unauthorized use of  information.  Typically this takes  the form of a License Agreement  between the  preparer/licensor of the Computer Program/s and  Software and the user/licensee of the Computer Program/s and  Software.
• The licensee  merely purchases the right to use the program. The licensee’s  right to use  the program  can be limited in any  number of ways.
• Most important limitations typically are that the licensee can only use the program on one or a select number of computers, the licensee may not make  any copies of the program, and the licensee has to keep  confidential  certain information  about the Computer Program/s and  Software.

Practical protection of Computer Program/s and Software:

• Author of the data base is well advised  to try and strengthen  his legal  hand as much as possible with certain  practical protection  measures which when employed prevent some one  from  copying  his work, or if they do,  to make proof of  this copying in a court of Law far easier.
• One method is the deliberate placement of errors or omissions  in your Computer Program/s and  Software. The placement of deliberate errors and omissions in the program is known as  the placement of “seeds”  or “Salting” a Computer Program/s and  Software. If your competitors Program/s contains  the same errors or omissions, then you have pretty good evidence  that your program  was copied. 
• These seeds will provide the best evidence, in a Court of Law, of copying.
• Errors that  occur if the database is large enough should be carefully documented and recorded.
• Implanting Computer “signatures” pertaining  to the computer code  or programming itself  are identifiable signs and can be of good evidentiary value. These signatures can be identified by the author  as they depict his style of programming.  This can be comparable to the style of writing.
• Apart from the above all standard non copying protection  can be imposed upon the program itself. This makes it difficult  for most users to ever make  a copy of the program.

Conclusion:

Although copy right protection  has become important, due to the role that is being played by the Indian Software Industry  nationally and globally, and should almost always be pursued, in any license of a Computer Program/s and  Software  of significant value, copyright protection alone should not be relied upon  to prohibit unauthorized copying. Trade secret protections, non compete and non disclosure agreements and employee generated IP assignment agreements  between the vendor and consumer, employer and employee, hirer and the programmer are necessary  to protect such database.  If,  as has already been witnessed    and noted, information  technology continues to grow  in commercial value and importance , then the proliferation  of  licenses and abovementioned agreements  are likely to be preferred and given importance.  To make or buy technology, the country needs a strong system of IPR, be it Copyrights, Patents, Trademarks, Designs, etc. If we need to stand on par with developed nations in the world market  for IT knowledge, if we need to  exploit the   substantial revenue generation capacity of  such technology, we need to protect ourselves and this is the only  way  of converting knowledge into wealth.

Ashok Ram Kumar.

Ashok Ram Kumar is the Senior partner at IP Markets and can be contacted at ram@ipmarkets.in

Internet Domain Names are entitled to be protected as Trade Marks

Intoduction: Internet use is growing. Now a house hold word, Internet has become accessible virtually to  anyone with a Computer, Modem and  Telephone. Recently the accessibility has extended to  almost everyone because of the mushrooming of  “cyber café”  in every city and major towns in the country.  The internet has revolutionized the computer and the communication world like never before. It has  wide range of users  from professionals, Government, commercial organizations and companies etc.  The user can communicate instantaneously  by sending E-mail to any remote  address in the world, upload information, download information  from the WWW – World Wide Web.  It is estimated that the Internet connects  Computer network  in over 50 countries across the world and thus has made  nation state boundaries meaningless and has succeeded in integrating the world into a global community.Need for Domain Name System: One  reason for the rapid development of Internet  is the acceleration of the  Commercial interest on the net. This was mainly due to the development of the HTML  (Hyper Text Markup Language) and also the  rapid technological development of the net  to host  graphics, images, sound, movie files and other “multimedia capabilities”. Slick advertisements , including graphics, sound, video, movies can be published and made available to the browsing public. With tremendous potential  available, the world business community have been scrambling to take advantage  and many businesses  are now creating  a presence on the internet by establishing an “internet site” or “web site”. One main advantage that the business community world over gained from these  capabilities was  “its”  virtual global presence. The Internet placed  the sole proprietor, small business firm and  a multinational corporation on the same footing. The business entrepreneur , by having his own “web site”  could publish multimedia information  and also text  with relative ease and at a fraction  of the normal cost and  advertise his services or products by which he had a true global presence. Today unobtrusive advertising is tolerated on the Net.  The advantage  of global presence at a very meager expense  also saw virtual business boom on the internet  which introduced the  emergence of e-commerce   or paperless transactions being conducted.  The presence of huge number of web sites on the net  had to be identified and for the purpose “lengthy numeric addresses” were given.   However this system proved confusing and not successful.  This practical difficulty  prompted the creation of “Domain name  system”.

WHAT IS DOMAIN NAME  :  The domain name system allows each  Internet site  to have a unique easy-to-remember alphanumeric “domain name”. Domain names consist of multiples levels. The top level domain  domains are generally  designated to  the types of Organizations being “.com” for commercial, “.org” for organization, “.gov” for Government, “.edu” for  colleges and universities, “.net” for internet infrastructure and “.mil” for  military organizations.  The second level domain name  is the part  usually designated by the domain name holder.

Domain names used in e-mails and WWW Addresses are  assigned on first come first served basis and the domain name is unique. Domain names  can be  filed electronically with  organizations like NSI, INTERNIC etc. Since no substantive procedure for examination of  domain name applications, generic and descriptive names are Registerable  as long as they are not identical with  an existing  domain name.A practice has slowly emerged amongst the  entrepreneurs, whereby  the domain name used by him  “identifies and distinguishes” the services or goods offered, the source and sponsorship of such services or goods. Thus Domain names are being used  in order to qualify as a trade mark  of the goods and services offered by the Entrepreneur.   Additional promotion  such as advertising  the Domian name or  using the domain name in a conspicuous manner – using the  mark some where in the web page -  apart from the address  was sufficient to show the use of Domain name as Trade mark. Thus domain names emerged  from being  a simple protocol address to   identifiers of business on the net and have given themselves the  identifying capacity  and equate themselves to distinctive signs. Thus  Domain names, lately, are made up of traditional  trade marks owned  by a company. The reason why most of the corporate  entities  adopt  such a practice is, it  makes it easier for a prospective  customer to remember the Company’s World Wide Web  address and log on  to the site more quickly  and avoid  the exercise  of search on the net.

If a domain name that is picked and adopted, is not  a existing  trade mark of the company it may become  a trade mark  only after some use and advertising. Before adopting  such name  for its domain name, it is advised  that the entity give  some thought   as the proposed names  strength or weakness as a Trade Mark.

As a result of the above development Domain names  have increasingly  come into conflict with trade marks, more particularly because of  the lack of  connection between  the system of registering domain names on one hand and the system of registering the  trade marks  on the other. The  emergence of the dual function of a domain name   has challenged the conceptual  base of intellectual property,  especially the  Trade Marks . These  difference have been exploited  by persons  or  entrepreneurs in the form of  cyber squatting or by cyber trafficking – who  have made it a practice  to register variety  of trade marks and trade names as internet domain  names  and for a resale  to the trade  mark owner at a “fair” price. While courts through out the world  have held these practices to be unlawful, and have issued injunctions against “cyber squatting” the  problem is still acute in  countries where litigation  takes a very long time and/or  where the costs of litigation are exorbitant.

In India, not much of importance  is given  to the domain  name in relation to it being identified with the Trade Mark  of the Company, though, however  recently there had been some healthy development in this aspect. The nexus between the domain name and  it being  used as  trade mark has been discovered and appreciated by entrepreneurs. Needless to say  the problem of “cyber squatting” or “cyber piracy” also followed, with cyber traffickers exploiting the situation to make  some  money, by offering  the  domain names of famous trade marks to  the right holder.

In this scenario the recent  decision  of the  Honourable  High Court of Bombay, holding that the  “Internet  Domain Names are entitled to be protected as Trade Mark” is a  shot in the arm  for the  genuine entrepreneur who is  on the net  and who proposes to be on  the net. While rendering the above Judgment the Honourable High Court of Bombay  relied upon a previous Judgment pronounced by the Honourable High Court of Delhi in the case of 

Yahoo Inc

Versus

Akash Arora and another

1991(1) Arb. LR  OR  1999 PTC (19) 201.

For your immediate reference  and appreciation of  the above, I quote  some of the  relevant paragraphs  from the  Judgment of the Honourable High Court of Bombay:

AIR 2000 Bombay 27                Rediff Communications Ltd

                                                                        Versus

                                                            Cyberbooth and another.

The Honourable High Court in the above Judgment has held that Internet Domain Names are entitled  to be protected as trade mark. The Honourable Court while delivering the Judgment in the above case examined  the various authorities placed before it  for its consideration, by the Counsels, and held that:

“Internet Domain Names are of importance and can be valuable  Corporate asset. A domain name  is more  than an Internet Address and is entitled to equal protection  as trade mark. With the advancement  and progress in technology , the services rendered  in the site  have also come to  be recognized and accepted  and are being given protection  so as to protect such provider of service from passing off the service  rendered  by others as his service”At page 30 para 11.Referring to the  law relating to passing off as contemplated  under the Trade and Merchandise Act, (43 of 1958), the Honourable Court held that:

“The  main bone of  contention between  the parties before me is whether the defendants by adopting  the domain name “RADIFF” which is deceptively similar to the plaintiff mark/domain name  “REDIFF” have been passing off their services and goods as that of  the Plaintiffs. To  that end it would be  appropriate to recapitulate  some well established principles. The law relating to  passing off is fairly well settled. The principle underlying  the action is  that no one  is entitled to carry on  his business in such a way  as to lead  to the belief  that he is carrying on the business  of another man or to lead to believe that he is carrying on  or has  any connection with the Business carried on by another man”.

In the light of the above decision domain names  can now  function as Trade Mark and thus establish  proprietary rights. Vide this Judgment, the  nexus between Trade Mark and internet domain name  has been defined  thus enabling the Domain names to be protected as Trade Marks.

Apart from the above very important  observations these two cases achieved a very important milestone in the legal history of the country in that:

1. The courts relied upon the common law rights in issuing the country’s first rulings on domain name, since  either in India or in  other parts of the world, there are no statutes that deal with domain names
2. The principle of passing off was applied by the courts in both the cases, where under no man is entitled to  carry on a business in such a way as to lead  to the belief that he is carrying on the business of another man.  Ad interim injunctions were granted to  the Plaintiff’s restraining the Defendants  from operating any business or selling, offering for sale, advertising and or in any manner dealing with the goods or dealing in the services on the Internet or otherwise under the Trademark/Domain name of the plaintiff.
3. Ad interim  injuction  was also granted on a sufficient ground that the person who intends to visit the site of plaintiff, may reach the site of the Defendants’ owing to the similarity in the domain names.
4. That the internet domain names are important and valuable corporate assets and are entitled to be protected as trade marks.

As already stated, this decision by the Honourable  High Courts, are not only a short in the arm for the “genuine  entrepreneur” , but  would  enable these entities to  approach the Court of Law with the hope that domain name grabbers and  domain name traffickers be dealt with severely.

The above two decisions  have laid down that Domain Names  can now function as  Trade Marks and thus enable the owner to establish proprietary rights.  The nexus  between  the domain name and Trade marks  has been clearly defined  in as much as domain names are now considered as  valuable business assets. It is advised that every entrepreneur wishing to retain his  true global presence on the net and who  wishes to conduct  a secure  and profitable e-business on the net register  “his” Domain name  as Trade mark with the  Registrar  of Trade marks and  be proactive against trade mark and domain name piracy.

Ashok Ram Kumar.Copyright- © A. Ram Kumar

Ashok Ram Kumar is the Senior partner at IP Markets and can be contacted at ram@ipmarkets.in

Digital Rights Management - Can it be the right Digital management IP rights?

                                                                                              

Relationship between law and technology has always been uneasy. Law had been slow and lethargic to respond to new technologies. Till recently the law makers handled problems presented by technology without break down of legal resources. Convergence of computers and internet posed a much more grave problem which Legal policy makers find it difficult to address. Music industry, film industry have burdened the onslaught by Internet piracy. Their reliance on traditional Laws pertaining to Copy Right or other laws did not produce the expected results. In this scenario a new emerging revolutionary digital technology that could enable the author to manage , control, permit usage of digital content was most welcoming. Can the paper management IP rights be now digital management IP rights?
Prologue:
DRM an acronym for Digital Rights Management, is a new, emerging and revolutionary technique applied and used for restricting the free use and transfer of digital content. Its basically an aggregation of technologies which specifies, manages, and enforces rules in all aspects of usage and distribution of digital content. The process of DRM is used in a number of media, but is most commonly found in video and music files. In simple terms it can be said that DRM is basically an aggregation of technologies which specifies, manages, and enforces rules in all aspects of usage and distribution of digital content. By using this technique the right holder in a specific work, be it audio or video, can manage his copyright material and the terms and conditions on which it is made available to the users.


WWW and Piracy - 

World wide web evolved as a classic media for dissemination of information at speed of light. Every conceivable form of information in different formats is available on the net. The personal computer regime furthered the access to net by netizens even from remote areas. Along with this boom came the bang of piracy. Piracy in music, audio and video, piracy in written works, piracy in fictional and non fictional works even to the extent of piracy in e-mails. It became very obvious that the Internet was now a big gigantic copying machine enabling unlimited illegal copying of content with out compromising on the standards of quality. Authors, music world, movie makes were worried. Added to this there was a phenomenal improvement in compression technology such as MP3, RAR files etc. Thus the download speed was reduced to almost 10 to 15% of the original down load time. The availability of multiple and perfect copies of various works was becoming a threat to the music industries viability and profitability. Ingenious programmers literally started a free sharing networ work between remote systems like the GNUTELLA which enabled peer to peer copying. The once solid domain of authors rights, performers rights , musicians rights was now crumbling in front of their eyes. Revenues to music industry dwindled due to large scale piracy. The more defiant music lovers even started breaking into precious databanks of the music industry and pilfered the loot to their hearts content. Copyright protection, though sounded formidable was inadequate. The industry was in search of a more "effective and immediate process or technique, which could enable the author or performer or the right holder to control and permit that could either stop such copying or permit the use or download on payment of certain price". The goal was to protect the rights of the author, prevent piracy and encourage digital music commerce. It was inevitable that a strong fool proof system was to be in place to ensure only paying consumers can access media.


Setting standard and self protection:

To fight back this digital piracy the music industry got together and created the SDMI- Secure Digital Music Initiative. The Secure Digital Music Initiative is a working group comprised of over one hundred and fifty businesses and organizations with significant interests in the future of digital music who are working to develop a specification for its secure distribution and securing music across all digital delivery platforms. DRM- Digital Rights Management was one part of the SDMI. In the past few years DRM is developing into a viable systems for IP protection and enforcement. The music industry's prayer for a programme that could stem the tide of unauthorised file sharing is answered in the form of DRM. Indirectly DRM has also started to protect the intellectual property right of the owner there by proving itself to be an important facilitating mechanism for protecting copy rights in free market. Not only specified IP's like Copyright, but through DRM it is feasible several other kinds of rights, like the right to privacy, which incidentally is a fundamental right in many legal systems which can directly or indirectly affect the distribution of the information, the product or even in remote, the services too. It is predicted current approaches to "intellectual property (IP) protection and enforcement" through DRM may render the present legal protection available in form of Copyright archiaic.


Components of DRM:

The following are some of the the broad components and important areas of DRM. This is only a broad indication and not specific related areas.

A. Business objective and Privacy
B. Planning the product, identifying the rights and related documents
C. Basis of use of such rights
D. Management of Legal and other Rights
E. Tools of DRM: Legal and Technical

A. Business Objective and Privacy : Every entity starts with an objective. The objective being the vision of the Company obviously there is a aura of secrecy or privacy around it. The entity could be an individual, a partnership, a private limited company, a trust or a society. It is still not clear as to how DRM could step in at this very nascent stage or the start up stage, where in though there are ideas visualized and visions set there is not enough work done or information or strategy developed to segregate, decide and crystallize the probably course of action, be it manufacturing, programming, developing a prototype etc. It could simply be stated that this nascent stage is the drawing board stage. In such a scenario it is to be seen whether a technique like DRM can be implemented or even protection tools like non disclosure, trade secrecy agreements is simple enough to give the adequate protection at this stage.

B. Planning the product, identifying the rights and related documents: It has been the experience of various Organisation which have implemented the DRM package, either in their simple format or complex procedures, that initial identification of work or product, the recordings of the works, the concerned and right owners, their rights and the works and also their consent to exploit the work. With out elaborating much on this aspect I would restrict my self to explaining a simple example. Lets take one aspect "identification of material and documents in a category of work". Lets take one of the categories of work as being literary work. The products in general in literary work are books, compilations of information, electronic database, computer scripts or programmes, articles etc. Having done this the next step would be to identify the work and who created the said work. This can be done in various ways like inquiring about the owners rights from copyright society (Music Industry) checking for copy right notices and may be also search relevant industry catalogues. It's a general rule that a creator or producer of material holds the copy right unless there is an agreement to the contrary. Authors could be writers, music composers or even software developers. Once such identification of the authors is done then the moral and performers right should be taken into account. In the maze of technology development the system should not forget to respect the moral and performers rights. This can be achieved by detailing all the information about the performer the work done by him etc.

C. Basis of use of such Rights: The basis of use of the holders rights is based on the consent of such right holder. If a copy right user is not exercising his exclusive right himself then he can give permission to other people to do so, through Licenses. Such licenses could be subject to certain payment conditions like outright sale or royalty or licence fee etc. In a digital environment the copyright owner may expressly or impliedly license the work to another. It is to be remembered that almost all common DRM platforms or systems will digitally reproduce the content into the DRM system and the said same content is transmitted through the DRM structure to the end user. How ever in such transmission there is one practical problem that arises. In the multiple reproduction of such content in various servers the transmission and retransmission from one server to another a temporary memory is created till such content reaches the end user. The matter of concern could be such temporary copies created as part of the technical process. Whether they infringe copy right or not depends upon whether the original transmission is authorized. Also under the Copyright act the temporary material which are made a spart of the technical process of transmission content do not infringe the Copyright provided the original transmission is authorized. This would also mean that if a particular work is being transmitted on the internet rights need not be obtained to make temporary copies.

D. Management of legal and other rights: The most common of the rights that could accrue to the author are Copyrights, trade secrets and Patents Rights management is a very crucial stage in the entire process. Normally it can be on two levels, Firstly at the Organizational level and Secondly at the product level. The management of rights can be successfully achieved only when a management plan is put in its place. At the organizational level rights management could include setting up of rights management policies, refining such policies, drafting and managing of agreements, managing the information on rights acquired which would also include knowing from whose the rights were received, how broad such rights are so on and so forth, control and enforcement of licenses supporting licenses and also the revenue collection . Management of rights would also include valuating of rights where under factors like creating costs, time taken to produce are considered. One more aspect is the mode of securing such rights where under acquiring variety of consents and authorizations need to be done. Development of appropriate agreements is also a very vital part of the management. Agreements portray the extent of rights that can be acquired or bargained. These agreements could be assignment agreements which involves transfer of ownership for consideration or licenses which may include non exclusive licenses too etc. Similarly at the product level what is to be attended to is acquiring adequate information on the product information on policies and agreements, enforcement of such rights and also revenue collection support.

E. Tools of DRM : legal and Technical. DRM also incorporates and envisages tools that are vital being Technical and legal tools. Lets examine what they are.
Technical tools: DRM can be performed by several different kinds of tools like a right definition language. Though its is demanding to define a particular language how ever certain works are going on to define such language like extensible Rights Markup Language (eXRML), another such like language being ODRL- Open Digital Rights language. There are also the communication protocols that need to be developed to maintain the homogeneity of understanding the transferring of data.

Legal Tools: They can constitute tools which the legal system provides like the Copy Rights, patents, Trade Marks, the various law enforcement authorities, modes of settlements of disputes like arbitration, court rulings etc. In the matters of evidence technical tools may be needed to show and prove evidence For this purpose legal; tools may have to heavily depend on technical tools. Thus it can be concluded that in the matter of legal proceedings and establishment of evidence it is imperative that legal as well as technical tools are deployed and worked in consonance.

Conclusion:
In this paper we have discussed some of the probable important areas involved in the process of DRM. Its beyonf doubt that DRM is becoming increasingly an important area with its focus on management of digital products. Today the situation is that many a companies are developing their own DRM systems, be it small or large. There are also Companies and entrepreneurs who have developed DRM packages and products on a commercial platform. Some times such companies are also designing and developing tailor made DRM packages in accordance with the specific needs of the Company. Though a standard language and a homogeneous protocol network is yet to be fully developed efforts are being made to speed up the process. It would be only a matter of time before such standardization is implemented at a commercial level.

It is predicted that the know how, development, knowledge and use of the DRM system is likely to be absorbed into normal business skills and practices in next few years. Usages could be free or cheap or even expensive but things are brightening up for the DRM infrastructure.

For creators and all sort of content communities DRM is likely to enable the growth and success of E-market and finally will be the key point in e-commerce system on market of the digital content and will enable a smooth, safe , secure movement of the digital works from the creator and producer to retailers and consumers at a cost. DRM if proved reliable may see authors seek legal advice on more fewer occasions.

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About the authors:
Ashok Ram Kumar:   Ashok Ram Kumar is the Senior partner at IP Markets . A practicing Lawyer in the niche area of Intellectual Property Rights and Information Technology. Has authored, designed and developed the country's largest Intellectual property website www.iprconsultants.com. He can be contacted atashokramkumar@gmail.com