In the evolving landscape of commercial litigation in India, Section 12A of the Commercial Courts Act, 2015, has emerged as a pivotal procedural checkpoint. It mandates pre-institution mediation for all commercial disputes, unless the suit “contemplates any urgent interim relief.” This provision, while aimed at reducing litigation and promoting amicable resolution, has been a topic of contest in the realm of Intellectual Property Rights (“IPR”) litigation, where urgency is often not just a strategic choice but a legal necessity to avoid public harm. The exception of contemplation of urgent interim relief as provided under Section 12A (1) is crucial in IPR matters, where plaintiffs often seek immediate ad interim/ex parte ad interim injunction to prevent ongoing infringement, fearing irreparable harm to their rights and to the general public. While the exception is widely accepted in IPR practice, at the same time, it also often attracts judicial scrutiny. Defendants increasingly challenge this side-stepping of pre-litigation mediation, arguing that courts are granting them without sufficient inquiry into whether the urgency is genuine or simply a strategic manoeuvre. This tension between procedural compliance and practical exigency continues to shape the evolving jurisprudence around Section 12A in IPR litigation. The Supreme Court in Yamini Manohar v. T.K.D. Keerthi laid down a critical framework for assessing urgency under Section 12A. It emphasized that courts must carefully scrutinize the plaint and supporting documents to determine whether the suit genuinely contemplates urgent interim relief. Importantly, the court cautioned against plaintiffs using interim injunction applications merely as a “camouflage” to bypass the mandatory mediation process, reinforcing the need for judicial application of mind before granting exemptions. The decision highlights the need for judicial discretion and scrutiny in determining whether the exemption is truly warranted. Several High Courts have since interpreted this principle in the context of IPR suits, often leaning toward a presumption of urgency. In M.K. Food Products v. S.H. Food Products, a Division bench of the Telangana High Court held that in copyright infringement matters, urgency is inherently presumed, thereby necessitating exemption from pre-institution mediation. Similarly, in Reddy’s Laboratories Ltd. v. Smart Laboratories Pvt. Ltd., the Delhi High Court ruled that trade mark infringement suits seeking injunctions do not require compliance with Section 12A, recognizing the immediate nature of relief sought in such cases. The Bombay High Court, in Chemco Plastic Industries Pvt. Ltd. v. Chemco Plast, went a step further by upholding the plaintiff’s right to seek urgent interim relief despite an eight-year gap between the issuance of a cease-and-desist notice and the filing of the suit. The court rejected the defendant’s plea under Order VII Rule 11 of the Code of Civil Procedure, 1908 (“CPC”), affirming that delay alone does not negate urgency if the infringement is ongoing. In another decision of the Delhi High Court in Bolt Technology OU v. Ujoy Technology Private Limited & Anr.[5], the court held that if one party initiates a settlement proposal and the other party rejects it in response to a resolution letter, the requirement for pre-institution mediation under Section 12A can be deemed fulfilled. This interpretation, especially when read alongside Rule 3 of the Commercial Courts (Pre-Institution Mediation and Settlement) Rules, 2018, significantly eases the procedural rigidity associated with Section 12A. The court also made an important observation regarding the nature of intellectual property rights, noting that such rights are not only critical to the parties involved but also carry broader public and consumer interest. Given this context, many IPR disputes naturally fall within the exemption carved out under Section 12A (1) for suits seeking urgent interim relief. However, not all courts have taken a lenient view. In Novenco Building & Industry A/S v. Xero Energy Engineering Solutions Pvt. Ltd., the Himachal Pradesh High Court dismissed the suit for non-compliance with Section 12A, citing a six-month delay and the absence of a clear justification for urgency. The Division Bench upheld this decision, signalling that courts may reject exemption requests where plaintiffs fail to demonstrate immediate and irreparable harm. The Supreme Court’s recent ruling in the appeal against the Division Bench’s order Novenco has now provided much-needed clarity. It held that “urgency lies in the continuing wrong, not in the passage of time,” thereby affirming that ongoing infringement itself constitutes sufficient urgency to bypass mediation. This judgment marks a significant turning point, reinforcing the principle that plaintiffs should not be denied immediate judicial intervention simply due to a delay in filing, provided the harm is continuous and subsisting. For litigants, these developments carry practical implications. Plaintiffs must draft their pleadings with precision, clearly articulating the urgency while filing applications seeking urgent reliefs. They should document the nature and extent of harm to demonstrate why a delay in the relief would cause irreparable injury. While delay does not automatically disqualify urgency, unexplained gaps can weaken the case. Defendants, on the other hand, should closely examine the plaintiff’s urgency claims and, where appropriate, seek rejection of the plaint under Order VII Rule 11 CPC. They may also advocate for mediation, especially in cases where infringement is not ongoing or where dialogue could resolve the dispute. Courts must continue to strike a balance between procedural fairness and the need for swift relief, applying their discretion judiciously and refining the jurisprudence around what truly constitutes “urgent interim relief” in IPR contexts. From an interesting angle of quia timet actions, preventive suits filed in anticipation of infringement have become increasingly relevant in the context of IPR litigation, especially when viewed through the lens of Section 12A. These actions allow plaintiffs to seek judicial relief before actual harm occurs, based on a credible and imminent threat to their rights. In IPR matters, this could involve restraining a competitor from launching a product or using a trade mark that closely resembles the plaintiff’s protected asset. The challenge arises when such suits are weighed against the procedural requirement of pre-institution mediation under Section 12A, which is mandatory unless the suit contemplates urgent interim relief. Since a quia timet action is based on the threat of future infringement, it is often filed

In July 2025, the Indian Patent Office (IPO) released comprehensive new guidelines for examining Computer Related Inventions (CRIs) (interchangeably referred to as ‘CRI Guidelines, 2025’ or ‘the new guidelines’). Several CRI applications were being erroneously rejected due to an outdated and rigid examination framework, last updated in 2017 (CRI Guidelines, 2017). This approach was not only stifling innovations but was also adding pressure on the Indian courts to decide upon numerous rejections by the IPO of CRIs. After considering the inputs from the various stakeholders, the IPO has published the CRI guidelines, 2025, with comprehensive sections addressing general CRIs, and emerging technologies. A. Fundamental Changes from CRI Guidelines, 2017 Building on eight years of legal evolution and technological advancement, taking cue from the various decisions of the Indian courts on the subject and the worldwide examination standards and practice procedures for CRIs, the new guidelines introduce a paradigm shift that fundamentally alters how CRI patent applications are to be examined and prosecuted in India. I. Hardware Novelty Clarification The new guidelines explicitly state that novel hardware is not required for patentability and rejecting this as “a higher standard which lacks any basis in law“. This removes a significant barrier that had been incorrectly applied in previous examinations. II. Technical Effect Standard as Primary Criterion The new guidelines establish that technical effect or technical contribution is sufficient for patentability, thereby aligning with global patent office practices. This represents a shift from form-based assessment to substance-based evaluation, where the focus shall now be on underlying technical contribution rather than claim format. III. Critical Distinction – Implementation versus Algorithm The new guidelines establish a key principle that applies across all CRI examinations: IV. Business Method – Absolute Exclusion Unlike other Section 3(k) categories, business methods have absolute exclusion without “per se” qualifier: B. General Examination Guidelines for Computer Related Inventions (CRI) The CRI guidelines, 2025 create clearer rules for how patent officers are to examine the patentability of computer inventions, thereby standardising assessment across patent offices and assisting both the controllers and patent professionals. I. Novelty Assessment: The Seven Stambhas Approach The CRI Guidelines, 2025 provide a systematic approach for novelty assessment using the following seven “Stambhas” (pillars in Indian architecture) as guiding principles: II. Inventive Step Assessment: The Five-Step Approach To check if your idea/ innovation is non-obvious to experts in the field, a 5-step test for assessing the inventiveness/non-obviousness has been laid down as guidance during examination: III. Technical Effect Assessment Framework (Subject Matter Eligibility Test) Central to the new guidelines is the systematic evaluation of technical effects incorporating jurisprudential developments from various landmark decisions from Indian courts on CRIs and the attempt to harmonize examination standards with practices of global patent offices. Accordingly, following instances highlighting technical effect being key to assessing eligibility of a CRI have illustratively been provided: IV. Clarity on Industrial Applicability The new guidelines maintain the standard requirement that inventions must be “capable of being made or used in an industry”. For most CRI inventions, this requirement is readily satisfied as computer-related technologies have clear industrial applications. Examples include software controlling manufacturing processes, AI systems for medical diagnostics, blockchain networks for supply chain management, and quantum algorithms for cryptographic applications. V. Means Plus Function Claims Guidance The new guidelines provide specific requirements for means-plus-function claims in CRIs: C. Specific guidelines related to Emerging Technologies [Artificial Intelligence (AI), Machine Learning (ML) and Deep Learning (DL), Blockchain, & Quantum Computing] While the general examination framework applies to all CRIs, emerging technologies require specialized consideration due to their unique technical characteristics and enhanced disclosure requirements. The new guidelines accordingly provide specific guidance on the following – I. AI Inventorship The new guidelines establish clear distinctions important for modern AI development: II. Enhanced Requirements for sufficiency of disclosure: When dealing with AI/ML/DL/Blockchain/Quantum Computing related inventions, the specification must disclose: While there exist potential areas for improvement, the CRI guidelines, 2025 mark a significant milestone, establishing a clear and forward-looking foundation that will foster innovation and support the growth of India’s technology sector for years to come.    Read the CRI Guidelines, 2025 as published

In today’s ever-progressing day and age, tattoos have evolved from a niche subcultural expression to a mainstream form of art. As the tattoo industry grows to flourish, debates around the intellectual property rights in a tattoo seem to be never-ending. This article aims to explore the intersection of tattoos and IPR in India, diving into the relevant legal provisions and a discussion around leading case laws shaping this deliberation.   People were first attracted to the aspect of copyrightability of tattoos when Victor Whitmill, the artist behind Mike Tyson’s iconic face tattoo, filed a copyright infringement lawsuit[1] against Warner Bros for using an identical tribal tattoo on a character in the movie Hangover: Part 2. In light of Whitmill’s existing copyright on the tattoo obtained over eight years back from the United States Patent and Trademark Office, Whitmill alleged that Warner Bros exploited his artistic work by using a replica of his copyrighted work without his prior consent. Interestingly, Warner Bros tried to defend their case arguing that the doctrine of fair use is considered as an exception to the exclusive rights granted under the copyright law and the doctrine allows limited use of a copyrighted work without prior consent from the original creator.[2] The presiding judge, however, dismissed the argument, calling it “silly”, particularly since the tribal tattoo was an exact imitation of Whitmill’s artwork. While the case did not mature into a formal trial and was settled outside the court, the case, however, embarked conversations around ownership and fair use in tattoos.   In the Indian landscape, a commonly used example while discussing tattoos is that of the megastar, Shah Rukh Khan, who is the first Indian celebrity to get a copyright for a tattoo registered in his name.[3] In 2011, the Registrar of Copyrights granted the actor a copyright in the letter D for his film Don 2.   In India, tattoos are not defined under any legislation specifically. On a liberal interpretation of Section 2(c) of the Copyright Act, 1957 (the “Act”) which includes paintings, sculptures, drawings, engravings or photographs, it can be argued that tattoos fall within the purview of an “artistic work”. Both drawings and engravings could be construed to include tattoo, since it is a depiction on the human skin or body prepared by combining both these techniques. Shah Rukh’s Don 2 tattoo is a testament to the Registrar’s validation to copyrightability of tattoos. Section 2 (d)(iii) of the Act states that the artist will be the author of an artistic work, not including a photograph. As per Section 13(1) of the Act, copyright can subsist in any artistic work provided that it is ‘original’. As long as the originality and requirement of minimum modicum of creativity of a design is maintained, there is no pertinent issue for it to be fixated on the human body as a medium of expression. Section 14(c)(ii) entitles the copyright holder the right to communicate the work to the public. This goes to say that if the tattoo artist were to exercise this right and communicate the work, he would have rights over the ‘artistic work’, i.e., the tattoo over the tattoo bearer’s body unless the artist has tattooed himself.   Now comes the next important question, i.e., who is the owner of a tattoo? Is it the tattoo bearer or the tattoo artist? The ownership of tattoos is clearly a contentious topic. Prima facie, it is the author of the work (in this case, the tattoo artist) who is the first owner of the copyright, even if the work is permanently on someone else’s body. Generally, a tattoo artist is considered as a hired employee and as per Section 17(c) of the Act, the employer shall (in this case, the tattoo bearer), in the absence of any agreement to the contrary, be the first owner of the copyright. From a practical standpoint, it does not sound problematic as once the tattoo bearer pays for the tattoo, he should ideally be able to enjoy the rights that vest with it. Legally speaking, however, while this sounds like a straightjacketed proposition, these rights remain highly unexplored owing to the ambiguity of ownership. This is because tattoo artists are usually freelancers and not employed under a work-for-hire agreement, thus their relationship might not qualify as a ‘contract for service’ as per the Act. What follows is that, can the ownership of a copyright be transferred from the tattoo artist to the tattoo bearer? Yes, a few instances where such a transfer can be effectuated could include tattoo artists providing their services as independent contractors, assignment[4], relinquishment[5] of the copyright or through an explicit license.   While we have been able to appreciate the scope of tattoos as copyrightable work under our law, it remains an aspect of the artistic industry that needs to be attended to, lest the ambiguities remain. Within the realm of copyright infringement, art on human body can be a challenging aspect, especially when it involves liability on part of both, the tattoo artist and the tattoo bearer. Few practices adopted over the years include execution of clear contracts between the parties, explicitly stating who owns the tattoo design, extent of permissible use of the tattoo, vis-à-vis commercial use or use on social media, limitations on further modifications or reproduction and licensing. There is an imminent need for recognition of the unique nature of tattoos as living art in the legislative framework, and a policy for determination of ‘originality’ of such art work.   Summing up, tattoos as symbols of personal identity, have become a legal flashpoint in the world of intellectual property. Over the years we have seen global courts wrestle with questions of authorship, fair use, personality rights, and commercialization, with no single global consensus. As digital economies blur the lines between public and private, art and commerce, the legal sphere ought to adept to disputes inked, literally, on to the skin. [1] Case No. 4:11-cv-00752-CDP, Missouri Eastern District Court [2] https://www.marklitwak.com/the-hangover-ii-tyson-tattoo-copyright-infringement-suit.html  [3] https://indianexpress.com/article/entertainment/entertainment-others/srk-registers-don-2-tattoo-in-his-name/ [4] Section 18 of the Act. [5] Section

In today’s world, advertising is a key way to attract consumers and build awareness about a brand. When a brand is promoted by comparing it with competitors to show its superiority, it is known as comparative advertising. This can be divided into two aspects: puffery and disparagement. Puffery involves exaggerated but non-misleading claims, while disparagement unfairly criticizes a competitor’s brand or product. Comparative advertising stands out as it effectively captures consumer attention. Such ads tend to stay longer in consumers’ minds due to the creativity involved. In this blog, we will analyze when comparative advertising is legal and valid, and when it crosses the line into disparagement or trademark infringement. The question of legality versus disparagement has come before the courts several times. While there is now some clarity on where to draw the line, new cases continue to emerge and are being decided by the courts. Recently, the Delhi High Court directed RSPL Limited to amend portions of its advertisement, as they were found to be derogatory and defamatory. The defendant was targeting the plaintiff’s product by using similar packaging, along with negative and disparaging remarks.[1] Further, early this month, the Delhi High Court ordered the deletion of specific lines from the defendant’s commercial, including, “Why settle for ordinary Chyawanprash made with 40 herbs?” which clearly indicated the plaintiff’s Dabur Chyawanprash as it is advertised as containing 40+ herbs.[2] While the Constitution of India guarantees freedom of speech and expression, advertisements cannot claim blanket immunity solely for raising awareness. It is essential that they do not mislead consumers or disparage competitors’ goods. The Supreme Court in Hamdard Dawakhana v. Union of India[3] clarified that advertisements, though a form of speech, are not entitled to full protection under Article 19(1)(a) due to their commercial nature. The court made an important distinction between political or social speech and commercial advertising, and upheld the government’s authority to regulate misleading advertisements in order to protect public health and welfare. Under Section 29(8) of the Trade Marks Act, 1999, the use of a registered trademark in advertising constitutes infringement if such use is dishonest, harms a trademark’s distinctiveness, or damages its reputation constitutes infringement. However, Section 30(1) of the Act provides exceptions to infringement where the use is in accordance with honest commercial practices and does not take unfair advantage of, or cause detriment to, the distinctive character or repute of the trademark. Courts have consistently drawn a line between permissible comparative advertising and unlawful disparagement. For example, in Reckitt & Colman of India Ltd. v. Kiwi TTK Ltd.[4], the Delhi High Court held that while a trader is allowed to boast its products’ superiority, such statements must not denigrate a competitor. In Pepsi Co. Inc. & Ors. v Hindustan Coca Cola Ltd.[5], the court laid down that in order to examine the question of disparagement, these three factors should be considered: (a) the intent of the commercial; (b) the manner of the commercial; and (c) the storyline of the commercial, and the message that it seeks to convey to the customers. Applying this, the ad suggesting Pepsi was a “children’s drink” was found to be derogatory. The same principles were followed in Britannia v. Unibic Biscuits India[6], where an injunction was granted against a tagline “Why have a Good Day, When you can have a Great Day!” indirectly mocking Britannia’s “Good Day” cookies. However, it is well established that promotion or exaggeration of one’s own products, commonly referred to as “puffery”, is not considered objectionable, provided the statements are either true or, at most, harmless exaggerations. Such puffery, including obvious overstatements intended to attract attention, is generally permissible as long as it is not likely to be taken literally or mislead consumers. However, when a claim refers to specific qualities or asserts clear superiority, and such claims are false or deceptive, they may be legally actionable. This is because the falsehood crosses the line from acceptable puffery into misleading representation. Determining when puffery becomes disparagement is a nuanced issue. A useful standard is the “reasonable person test”, which is, whether an average person would interpret the claim as a serious and factual assertion. Alternatively, one may consider whether the advertiser has made a specific claim about a flaw or shortcoming in a competitor’s product. In Reckitt Benckiser (India) Pvt. Limited v. Wipro Enterprises (P) Limited [7], the Delhi High Court clarified that puffery is not actionable unless the overall effect of the ad is to disparage the competitor’s product rather than promote one’s own. Courts have ruled on exceptions where a competitor’s product is shown as inferior, provided the claim is backed by factual, substantiated research. In one case, an ad comparing products based on lumens (a standard measure of brightness) was not considered disparaging, as the comparison was accurate and verifiable.[8] However, even if advertiser claims are factual, if the overall message is misleading, the advertisement may still amount to disparagement. The current legal framework governing comparative advertising under the trademark law remains somewhat undefined. However, based on the provisions of the Trade Marks Act, 1999 and the case law discussed above, it is clear that fair use is limited to honest comparison and must not involve defamation, denigration, or unfair portrayal of a competitor’s product. Advertisers are free to promote their own brand through puffery, provided they do not cross the line into disparagement. To assess whether an advertisement amounts to puffery, disparagement, or trademark infringement, factors such as intent, overall impact, storyline, and presentation must be considered. If a competitor’s product is depicted as inferior, even indirectly, the advertisement may be deemed disparaging and therefore impermissible. Ultimately, the purpose of comparative advertising should be to inform and benefit consumers and not to undermine competitors through unethical means. [1] Hindustan Unilever Limited v. RSPL Limited, CS(COMM) 629/2025. [2] Dabur India Limited vs Patanjali Ayurved Limited And Anr, CS(COMM) 1195/2024 [3] 1960 AIR 554. [4] 63(1996)DLT29. [5] 2003 (27) PTC 305 (Del). [6] MIPR 2008 (3) 347. [7] CS(COMM) 258/2023. [8] Havells India Ltd & Anr. v. Amritanshu Khaitan & Ors., CS(OS) 107/2015.

In today’s era of technological advancement in the field of production, sampling has become a cornerstone of creativity. From hip-hop to EDM to cinematic scores, artists routinely incorporate snippets of pre-existing recordings into new compositions. While sampling can push artistic boundaries, it also raises complex legal questions. The recent judgment in Ustad Faiyaz Wasifuddin Dagar v. A.R. Rahman & Ors., CS (COMM) 773/2023 brings these issues to the forefront of Indian copyright jurisprudence. Music sampling refers to “the process of taking a small portion of a sound recording and digitally manipulating it as part of a new recording” and has become a common creative technique in modern music production. The jurisprudence around deriving “inspiration” for musical compositions from existing, copyrighted works is ever evolving, as different jurisdictions grapple with the question of balancing an artist’s rights without stifling the general progress and creative processes of the billion-dollar music industry. Ustad Faiyaz Wasifuddin Dagar v. A.R. Rahman – Drawing a line between music sampling and copyright infringement Recently, classical vocalist Ustad Faiyaz Dagar (“Plaintiff”) sued composer A.R. Rahman, producers and other people involved in making of the song Veera Raja Veera from Ponniyin Selvan II (collectively “Defendants”). It was alleged that the song Veera Raja Veera copied Shiva Stuti, a dhrupad composition by the Junior Dagar Brothers (the plaintiff’s father and uncle). The core issue was whether Defendants’ work was based on a public domain melody or infringed the Dagar brothers’ original music composition. The Plaintiff claimed Defendants’ composition was virtually identical in style, structure, and emotion to Shiva Stuti, and had been used without credit. The Defendants argued that the work was based on a 13th-century hymn by Narayana Panditacharya, which was a part of the public domain, dhrupad tradition, and not a proprietary piece of composition. Justice Pratibha M. Singh, in an interim order, found a strong prima facie case of copying, holding that Veera Raja Veera was “identical” in musical essence to Shiva Stuti and likely infringed the Dagar brothers’ rights. However, in May 2025, the Division Bench of the Delhi High Court stayed the order and the matter is now pending before Hon’ble division bench. Analysing the law in India – What led to the Court’s interim order in Dagar v Rahman? While the Indian Copyright Act does not specifically refer to “sampling,” the principles of infringement applies in cases where sampling is alleged. Under the Copyright Act, 1957 the composer of a musical work and the producer of a sound recording hold exclusive rights to reproduce and communicate their creations. For infringement to be established, the alleged copying must not be independently created and must involve a substantial portion of the original. Indian courts often apply the “lay observer” test which checks whether an average listener would perceive the new work as sounding the same as the original. Even the smallest music segment can be protected if it captures the essence of the original piece. Accordingly, in Dagar v. Rahman (supra), the Court applied the “substantial similarity” or de minimis test and concluded that Rahman’s song had appropriated the “core” of an earlier composition. From the perspective of a listener, the new work was found to be not merely inspired but virtually identical in notes, emotion and aural impact to the original. Consequently, the court held that the new composition constituted an infringing reproduction of the original. Fair Use as Defence by a Composer ? While several jurisdictions around the world recognise the defense of fair use however, Indian copyright law does not have an open-ended fair use provision. The Copyright Act, 1957 enlists a specific list of fair dealing exceptions which allow the use of copyrighted material for limited purposes, such as private use, criticism or review, reporting of current events, educational purposes etc. Pertinently, creating a new commercial song or film soundtrack is not among the enumerated fair dealing purposes. Indian copyright law only provides a safe harbour to use of a song for the purpose of, say, review, or to teach. Thus, a composer cannot invoke “fair dealing” to justify sampling another artist’s music in one of his film songs, since his use is a commercial entertainment use (not criticism, research, etc.). Copyright Act, 1957 does not explicitly mention the “de minimis principle” (implied by the requirement of a substantial part being copied), but once a use is found substantial and outside the listed exceptions, there is no general transformative-use defence available. Law in the USA with respect to music sampling The U.S. Copyright Act grants authors the exclusive right to reproduce any portions of their works. Courts in the U.S. have grappled with music sampling early on, with the Sixth’s Circuit’s noted decision in Bridgeport Music v. Dimension Film, 410 F.3d 792 (6th Cir. 2005) wherein it was simply stated, “get a license, or do not sample”, to the Ninth Circuit’s decision in VMG Salsoul v. Ciccone (824 F.d 871 (9th Cir. 2016))in which the Court reinstated the de minimis defence, and held that use of a tiny, indistinct snippet was unsubstantial, as an average audience could not recognize it, thereby it did not amount to music sampling. This created a circuit split. Summarily, in the U.S. a very short or barely perceptible sample may be excused as de minimis in some courts, but in other courts any recognizable sample may be found infringing. Crucially, the U.S. courts focus on whether the use is “transformative”, i.e. adding new expression or meaning, rather than just repackaging the original. The U.S. Supreme Court in Campbell v. Acuff-Rose (510 U.S. 569 (1994)) established that even a commercial use can be fair if it is sufficiently transformative. Most sampling in popular music is done for its aesthetic or aural qualities rather than to comment on the sampled work, which often weighs against fair use. It has been observed that for the USA music industry, the safer course has been to clear samples via licensing instead of banking on fair use. The way forward The important

The Advisory for the regulation of Dark Patterns   The Central Consumer Protection Authority (“CCPA”) has recently on 5 June 2025, released an advisory for e-commerce platforms focusing on the regulation of dark patterns. The aim is to prevent these platforms from engaging in “deceptive and unfair trade practices”. As per the advisory, e-commerce platforms are required to – The Background In 2023, the Department of Consumer Affairs (“DCA”), recognizing the concerns posed by dark patterns, had issued the Guidelines for Prevention and Regulation of Dark Patterns (“Guidelines”). The Guidelines outline what constitutes dark patterns, preventing them and thereby strengthening consumer protection in the digital era and curbing unfair practices in e-commerce and online services. The Guidelines apply to all platforms, advertisers and sellers, offering goods/ services in India and provide a regulatory framework against any sort of practices which deceive consumers. Despite the Guidelines, over the last few years, the National Consumer Helpline continued to receive multiple complaints from consumers regarding dark patterns. The CCPA also continued to observe various violations by major e-commerce platforms, such as Amazon, Uber, Ola, Rapido, Zepto, etc., and issued notices to eleven (11) such platforms for using manipulative tactics to mislead consumers.   Following this, in May 2025, the DCA convened a meeting with various stakeholders, such as e-commerce platforms, industry associations, consumer organizations, and National Law Universities to discuss the prevalence of dark practices. In the meeting, various issues were highlighted, and the platforms were urged to act proactively to create a transparent and safe digital space for consumers. This advisory is a continuation of the Guidelines, and the issues identified in the meeting.   The DCA has been keeping a close watch on the violation of the Guidelines issued for prevention and regulation of dark patterns. The DCA has also constituted a Joint Working Group (“JWG”) which will examine and undertake measures to the violations by e-commerce platforms and share such violations with the DCA. The JWG shall also suggest appropriate awareness programmes for creating awareness amongst the consumers. What are Dark Patterns as per the Guidelines? In the Guidelines, dark patterns have been defined as “any practices or deceptive design pattern using user interface or user experience interactions on any platform that is designed to mislead or trick users to do something they originally did not intend or want to do, by subverting or impairing the consumer autonomy, decision making or choice, amounting to misleading advertisement or unfair trade practice or violation of consumer rights”. In the Guidelines, the CCPA has identified thirteen (13) dark patterns, which are as follows: (i) False Urgency:  Making false statements to imply popularity/ scarcity of a product, to mislead consumers into making an immediate purchase. For instance, displaying the message “offer ends in 10 minutes” to create false urgency so that consumers have to make a decision in haste. (ii) Basket Sneaking:  Including additional items at the time of checkout, without a consumer consent, leading to the consumer paying more than was required for the product/ service purchased by him/her. Such additional items can include payment to a charity, subscription to the service, travel insurance, etc. For instance, automatically including a donation at the time of checkout. (iii) Confirm Shaming:  Using a phrase, video, audio or any other means to create a sense of fear/ shame/ ridicule/ guilt in the mind of the consumer which forces the consumer to purchase something. For instance, guilting the consumers to donate by displaying the message “Don’t be a cheapskate, donate to charity”. (iv) Forced Action:  Forcing a user into buying any additional goods or subscribing for an unrelated service. For instance, making consumers sign up for updates before a purchase in made. (v) Subscription Trap:  (a) Making cancellation of a paid subscription impossible or a complex process; (b) hiding the cancellation option for a subscription; (c) forcing a user to provide payment details for auto debits for a free subscription; (d) making the instructions related to cancellation of subscription ambiguous/ confusing. (vi) Interface Interference:  A design element that manipulates the user interface in ways that conceals relevant information as compared to other things or to misdirect a user from taking an action as desired. For instance, when a consumer clicks on a X mark, the page redirects to an advertisement. (vii) Bait and Switch:  The practice of advertising a particular outcome based on the consumers action but deceptively serving an alternate outcome. For instance, clicking on an ad to purchase a service worth Rs. 100, but at checkout the total amount increases with additional costs. (viii) Drip Pricing:  (a) Revealing the price of products/ services post-confirmation of purchase; (b) a product or service is advertised as free without appropriate disclosure of the fact that the continuation of use requires in-app purchase; (c) consumer is prevented from availing a service which is already paid for unless something additional is purchased. For instance, hiding that there will be an additional cost for delivery to purchase an item. (ix) Disguised Advertisements:  Masking advertisements as other content, such as new articles, which are designed to blend in with the rest of an interface in order to trick customers into clicking on them. For instance, not disclosing where there is a paid promotion for a product and disguising it as a genuine review. (x) Nagging: Repeated and persistent interactions, in the form of requests, information, option, to make a transaction. For instance, pop-ups appearing at each step to enable notifications. (xi) Trick Question:  Use of confusing or vague language, in order to misguide a consumer from taking desired action. (xii) SaaS billing:  Generating and collecting payments from consumers on a recurring basis in a software as a service (SaaS) business model by exploiting positive acquisition loops in recurring subscriptions to get money from users as surreptitiously as possible. For instance, where you are required to provide your card details before signing up for a free trial and an amount is deducted once the free trial ends without prior consent of consumer. (xiii) Rogue Malwares:  Using a

With evolving market trends and intensifying economic competition, businesses and brands are constantly seeking new ways to stand out. As a result, non-conventional trademarks are gaining traction globally. Non-conventional trademark can be defined as an umbrella term that encompasses a wide array of marks, such as, sound mark, color mark, smell mark, motion mark, etc. These marks, though powerful in capturing consumer attention, often challenge traditional legal frameworks. This write-up specifically focuses on motion marks and smell marks, aiming to analyze the jurisprudential gaps in India when compared to other jurisdictions. Legal Requirements for Trademarks in India To qualify as a trademark under Section 2(1)(zb) of the Trade Marks Act, 1999, a mark must: 1.      Be capable of being graphically represented, and 2.      Distinguish the goods/services of one party from another. As Rule 2(1)(k) of the Trade Marks Rules, 2017 (“TM Rules”) “graphical representation means the representation of a trademark for goods or services represented or capable of being represented in paper form and includes representation in digitized form”. The major hurdle to the registrability of unconventional trademarks in India, lies in fulfilling the eligibility criteria itself. Motion Marks Like any other unconventional trademarks, motion marks act as a distinctive source identifier because of their dynamic nature. Simply put, motion marks can be understood as a cumulative depiction of images or clips presented in a distinguished motion or movement. The first motion mark to be accepted in India was the Nokia Corporations’ famous mark depicting two connecting hands. Interestingly, despite the animated nature of the mark, it was accepted by the Trade Marks Registry (“Registry”) as a device mark. Subsequently, TM Rules broadened the scope of graphical representation to the above-mentioned. Furthermore, in 2019, Toshiba Corporation’s application for a motion mark was objected by the Registry on the ground that “motion marks are not accepted in India”. However, pursuant to Toshiba’s submissions regarding the distinctiveness of the mark and its compliance with the requirement of graphical representation, the mark was ultimately accepted by the Registry as a ‘motion mark’. When looked at from a global standpoint, the issue of graphical representation primarily, does not become a hurdle in the registration of a motion mark. For instance, in the US, an application for a motion mark requires a specimen, which must be an electronic file, that depicts the motion sufficiently to show how the mark is used for the relevant goods/ services. Apart from the criteria of graphical representation and distinctiveness, a motion mark must also be non-functional. This requirement emanates from the fundamental principle that a trade mark must serve to indicate the source of origin of the goods and services and must not grant exclusive rights to a single proprietor over a functional or utilitarian aspect of a product. Accordingly, a mark, wherein the motion itself performs a utilitarian function, cannot be granted protection as it would go against the principle of fair competition and public interest. It is interesting to note that while several jurisdictions, including the US, have inclusive eligibility criteria as regards motion marks, a majority of the motion mark applications encounter refusals mainly because of their failure to function as a source identifier. For example, in 2024, EUIPO rejected an application filed by KCT GmbH & Co. KG, for a motion mark showing the opening and closing of a window (click here to see the mark). This decision was further upheld by the Board of Appeal, on the grounds that the mark showed a functional process and lacked distinctiveness. Smell Marks As the name suggests, smell marks can be defined as a distinctive type of smell which acts as a source identifier for a particular good/service and serves to distinguish its good/service from those of others. One of the major hurdles in the registration of a smell mark lies in its intangible nature and lack of any subjective criteria to examine its distinctiveness. The legal challenge pertaining to the registration of a smell mark surfaced in India, when Sumitomo Rubber Industries Limited, a global tyre and rubber company based in Japan, in 2023, filed an application at the Registry seeking protection for an olfactory smell of roses on and in relation to tyres. As predicted, the Registry objected to the application stating that there is no separate category for filing of smell marks in India. Further, the Registry also pointed out that a smell mark fails to fulfill the criteria of graphical representation and there is no possible way to examine distinctiveness of a smell. Interestingly, in its response to the examination report, the applicant has relied on the progressive approach taken by several foreign jurisdictions while interpreting the term ‘graphical representation’. Various jurisdictions, including Australia and United Kingdom (prior to 2018 amendment which removed the requirement of graphical representation) includes the criterion of graphical representation, however, these countries, at the same time, interpret graphical representation as visual representation by means of images, lines or characters. In fact, the applicant has, in the instant case, argued that since the smell of roses has no variation and is well-known to the members of public, “the use of the descriptive word for the said smell is good enough as their representation” Reliance was also placed on the seven-fold test introduced by the European Court of Justice in the case of Siekmann v. German Patent and Trademark Office[1], where the court held that for a scent to qualify for registration, it should be capable of being represented graphically, and that the representation must be clear, precise, self-contained, easily accessible intelligible, durable and objective.   It is pertinent to note that while the Indian IP office is yet to determine the standards to examine olfactory marks, the legal development in this regard is not as recent as one might think. For instance, in a 1999 case of Vennootschap Onder Firma Senta Aromatic Marketing v. Markgraaf B.V, the Netherlands court recognized the smell of fresh cut grass in respect to tennis balls in Class 28. The Registry is yet

In current digital landscape, where transparency is more important than ever, influencers wield significant power—not just to shape trends, but to hold brands accountable. With millions of followers trusting their opinions, influencers have evolved from mere content creators into consumer advocates. However, when an influencer publicly criticizes a brand it often raises questions: are they overstepping boundaries, or simply exercising their right to free speech? As these dynamics become increasingly complex, brand owners are taking a more active role in defending their intellectual property and managing reputational risks.   This growing tension between influencer expression and brand protection has brought legal considerations to the forefront—particularly in the trademark law. In India, where influencer marketing is growing rapidly but lacks specific regulation, courts have begun addressing cases involving trademark disparagement by social media influencers. A key issue that has emerged is the balance between an influencer’s right to free speech and a brand’s right to protect its trademark and reputation. Although the Trade Marks Act, 1999 (the “Act”) does not explicitly define “disparagement”, Black’s Law Dictionary describes it as “a false and injurious statement that discredits or detracts from the reputation of another’s property, products or business”. Influencers may be held liable for trademark disparagement if they make false or misleading claims that damage a brand’s goodwill. In such cases, Indian courts have provided remedies under the broader scope of trademark infringement, reinforcing that freedom of expression does not extend to deceptive or defamatory content.   Although the Act does not lay down a clear standard for distinguishing between trademark disparagement and an influencer’s right to free speech, the introduction of the Advertising Standards Council of India Guidelines, 2023 (“ASCI Guidelines”) for influencer advertising in digital media has added a new layer of accountability. Courts are increasingly seeing brands refer to these guidelines to manage influencer conduct. We’ve explored the scope and significance of the ASCI Guidelines in our article titled “Demystifying Advertising Standards Council of India – Safeguarding Ethical Advertising in India.” Notably, these guidelines outline the responsibilities influencers must uphold when partnering with brands. However, a critical question remains: can these guidelines be used by brands as a basis for legal action in trademark disparagement cases? And how do we determine the threshold where an influencer’s statement qualifies as protected speech under Article 19(1)(a) of the Indian Constitution versus unlawful disparagement?   Even before the introduction of the ASCI Guidelines, the Bombay High Court addressed the issue of trade mark disparagement vs. an influencer’s right to free speech in the case of Marico Ltd. vs. Abhijeet Bhansali[1]. Marico had filed a lawsuit against the defendant, a social media influencer, alleging that his video contained false and defamatory statements about their coconut oil under the brand PARACHUTE. While the decision of the single judge bench of the Bombay High Court, ruling in favour of Marico, was stayed by the division bench in an appeal[2], the single judge bench made some pertinent observations regarding the role of social media influencers. The court had observed that social media influencers are “individuals who have acquired a considerable follower base on social media along with a degree of credibility in their respective space”. The judge emphasized that influencers cannot make statements with the same impunity as ordinary individuals, as their words have a magnified impact on their audience. Consequently, the court directed the defendant to remove the video, highlighting the need for influencers to exercise caution and responsibility in their content creation. However, the division bench was of the view that the statements made by the defendant were merely an expression of opinion. The division bench reasoned that a clear distinction be drawn between ‘facts’ and an ‘expression of opinion’. As per the division bench, no individual can be prohibited from stating factual matters; however, they may be held accountable if they cannot substantiate the facts they claim. The division bench also ruled that when an opinion is based on disclosed and non-defamatory facts, no legal action can be taken.   The Bombay High Court’s ruling in the Marico case (supra) laid important groundwork in defining the responsibilities of social media influencers, even before formal regulations like the ASCI Guidelines were introduced. The court’s emphasis on influencers’ heightened responsibility due to their credibility and influence mirrors the expectations outlined in the ASCI Guidelines. Both the court and the ASCI acknowledge that influencers are not ordinary consumers; their statements can significantly impact brand reputation and consumer perception.   Following the introduction of the ASCI Guidelines, the Delhi High Court addressed their relevance in the case of Zydus Wellness Products Ltd. v. Prashant Desai[3]. Zydus filed a suit against the defendant, alleging trademark infringement and disparagement after he published a video claiming that Zydus’s brand COMPLAN should not be given to children due to its high sugar content. Zydus had, in its submissions, argued that the defendant lacked the necessary medical qualifications to comment on nutritional matters and relied on the ASCI guidelines to support this claim. In response, the defendant maintained that the ASCI guidelines were merely obligatory in nature and are not mandatory, and contended that his video was informative and protected under Article 19(1)(a) of the Constitution. However, the court ruled in favour of Zydus, noting that the defendant had presented no medical evidence or expert opinions to substantiate his claims. The court further emphasized that, in line with the ASCI guidelines, influencers without relevant qualifications should not make health or nutrition related claims. As a result, the defendant was restrained from publishing any content that could amount to trademark disparagement. The judgment clearly demonstrated the court’s willingness to consider the ASCI guidelines in assessing influencer conduct in a trade mark disparagement dispute.   A more recent case that delves into similar issues is San Nutrition Pvt. Ltd. v. Arpit Mangal & Ors.[4] In this case, San Nutrition filed a suit against several influencers, claiming they had made disparaging remarks about their products under the guise of public awareness. San Nutrition sought relief on grounds

An Internet address, i.e., a domain name, acts as the primary means for consumers to locate a website. As much as the brand owners would desire to secure every permutation and combination of similar domain names to channel all traffic to their website, domain name registration is offered on a first-to-register basis, rendering it practically unfeasible to register all such variations. This loophole and the impunity of anonymity offered by the Internet often encourage individuals to exploit the goodwill and reputation of well-known brandsfor the sake of easy monetary gain.   In India, the former Chief Justice, Dr. Justice D Y Chandrachud, warned against a phishing attack involving a fake website impersonating the Supreme Court of India. The Supreme Court’s registry issued a public notice alerting the public to SCIGV.COM, a fraudulent domain resembling SCI.GOV.IN, which was used to solicit personal and confidential information. This incident is part of a broader surge in financial fraud, where perpetrators leverage deceptively similar domain names to mislead consumers. Beyond fraudulent domains, they utilize social media and paid news platforms to spread misinformation, lure individuals into scams, and invite them to broadcast groups on messaging apps like WhatsApp and Telegram.   Once users engage with deceptive domain names, fraudsters employ multiple revenue-generating tactics. Fake investment schemes promise high returns before vanishing with victims’money. Fraudulent shopping websites mimic legitimate brands, tricking buyers into paying for counterfeit goods or, in some cases, never delivering any product after the payment is made. Phishing scams manipulate users into revealing sensitive data for identity theft or financial fraud. Some perpetrators park fraudulent domain names, earning advertising revenue while misleading visitors. Others redirect traffic to their platforms, increasing visibility and engagement for further exploitation.   Combating fraudulent domain scams requires vigilance and proactive measures. Here are some key remedies available to Brand Owners:   Domain Name Complaints/Takedowns:   Domain name complaints can be filed with the available authorities. Generally, an authority that may be approached depends on the top-level domain name, such as complaintsagainst top-level domain names like .COM can be filed with various authorities under the Uniform Domain Name Dispute Resolution Policy (UDRP).   The UDRP established by the Internet Corporation for Assigned Names and Numbers (ICANN) provides a standardized procedure for resolving domain name disputes. It is adopted by all ICANN-approved domain registrars and administered by accredited dispute resolution service providers like the World Intellectual Property Arbitration and Mediation Centre and the Forum (formerly National Arbitration Forum). A key advantage of UDRP is that it allows filing complaints against multiple domain names if they share the same registrant. Additionally, many countries have their National or Regional Domain Name Resolution Policies governing country code top-level domains (ccTLDs). For instance, in India, the National Internet Exchange of India (NIXI) oversees the .IN Domain Name Dispute Resolution Policy, which handles disputes related to .IN and .BHARAT domain names, ensuring better oversight of domain-related conflicts at a regional level.   Even though the domain name dispute resolution proceedings provide quick relief, they are not as effective a tool against such financial fraud because the perpetrators operate withmultiple domain names, which are often registered using fake details. Therefore, the brand owner may cancel/transfer the domain name and receive the registrant’s details. However, typically, these details are fictitious, and the perpetrators continue to operate their fraudulent activities by switching from one domain name to another.   Court Action Against Domain Names:   Owing to the multifaceted web of fraudulent activities, addressing the issue solely through domain name complaints becomes impractical, which is why the brand owners have been compelled to move to courts to seek a comprehensive resolution by way of a civil suit which provides a holistic remedy against such domain name financial frauds, including relief against all ancillary tools being used by the perpetrators.   In a civil suit, brand owners can seek comprehensive blocking of fraudulent content including, removing social media posts/paid news coverage perpetrating the scam, and suspending fraudulent mobile applications, and suspension of bank accounts used to collect monies by the perpetrators, alleging trademark and copyright infringement, passing off, and other violations. Further, though fraudsters frequently use fictitious identities to evade detection, legal proceedings can seek disclosure of details by impleading relevant entities such as domain registrars, social media platforms, telecom providers, and banks. Additionally, the perpetrators often continue their fraudulent activities by introducing new domain names with minor changes to the domain name. Such resurfacing of domain names can be countered by filing a motion to add additional domain names and seeking similar orders against the new domain names. Brand owners may also involve government authorities like cyber cells to initiate investigations, with courts typically directing officials to examine fraudulent activities and submit timely status reports.   The rise of well-coordinated, multifaceted domain name frauds has led to a surge in civil suits seeking remedies against the misuse of trade marks of well-known brands. Given the significant public harm, courts have responded stringently, often granting swift ex-parte ad interim injunction orders to block fraudulent websites, remove misleading content, suspend instant messaging platforms used in scams, and disclose available perpetrator details from relevant platforms and authorities. Although court actions have played a crucial role in restricting the proliferation of such frauds, the perpetrators’ reliance on privacy services and falsified documents has made it challenging to uncover their true identities.   Batch of Matters Seeking Probable Solutions Before the Delhi High Court:   Acknowledging the widespread misuse of well-known trademarks such as DABUR, MICROSOFT, AMAZON, TATA, and AMUL, the Delhi High Court, rooted in Dabur India Limited v. Ashok Kumar & Ors., has consolidated numerous civil suits to address larger systemic issues surrounding deceptive domain names. This batch of cases involves key stakeholders, including ICANN, various Domain Name Registrars (DNRs), banks, MEITY, DOT, NIXI, and government investigation agencies, to collaborate on solutions. The court has issued significant orders, such as directing DNRs to appoint grievance officers in India and disclose registrant details. Additionally, it has considered blanket injunctions against

INTERPLAY BETWEEN SECTION 11 AND SECTION 34 OF THE TRADE MARKS ACT, 1999 The Trade Marks Act, 1999 (hereinafter, the “Act”), aims to strike a balance between the rights of trade mark owners and the need for fair competition in the marketplace. Two pivotal provisions are Sections 11(4) and 34 of the Act which work together to reconcile the conflicting interests of prior users and registered proprietors, providing protection and clarity when trade marks overlap. These provisions are particularly significant in cases where a registered trade mark conflicts with the rights of someone who has been using the mark in the market before the registration. This article explores the interplay between these sections, illustrating how they collectively safeguard trade mark rights. Section 11(4): Preventing Conflicts in Registration Section 11 of the Act focuses on preventing the registration of marks that could create confusion or conflict with earlier trade mark. The aim is to protect the sanctity of the Register of Trade Marks and the interests of those who have built reputations based on their marks and avoid situations where new marks cane be registered and cause confusion in the marketplace. The earlier trade mark is defined in Section 11 as the mark that is: a. Registered first; or b. bears an earlier date of filing. While the aim of Section 11 of the Act is to bar registration of an earlier trade mark however, Section 11(4) of the Act provides a mechanism that allows conflicting marks to coexist in the register under specific conditions, namely through consent by the earlier mark’s proprietor. Section 11 (4) of the Act emphasizes the importance of the consent of the prior user to resolve conflicts before registration, enabling new businesses to proceed with registration even when their mark may conflict with an existing one. This creates a framework for collaboration and mutual respect between businesses. Section 34 of the Act: Safeguarding the Rights of Prior Users While Section 11 of the Act provides a preventive mechanism for registration, Section 34 comes into play as a defensive mechanism for prior users of a trade mark. Section 34 ensures that the rights of individuals or entities who have used a mark continuously before its registration by another party are not overridden by the latter’s registration. It particularly protects those who have used a mark in commerce but have not registered it, ensuring their use is not disturbed by a subsequent registration of an identical or similar mark by someone else. The essence of Section 34 of the Act is that it protects the first user of a mark, even if the user did not register it, from being infringed upon by a registered user. This is crucial in promoting the principle of priority of use over priority of registration. For Section 34 of the Act to apply, the following conditions must be met: a. Continuous use of the mark by the prior user. b. The use must have occurred before the date of registration of the subsequent user. c. The use must be in relation to the same or similar goods or services. Section 34 of the Act ensures that those who have built up goodwill through the use of a mark prior to another’s registration can prevent the later registrant from interfering with their established rights. In the case of Radico Khaitan Ltd. v. Devans Modern Breweries Ltd. [2019 (78) PTC 223 (Del)], the Delhi High Court, while evaluating the scope of Section 34 of the Trade Marks Act, held that “Section 34 defines when vested rights are saved. The said Section provides a defence in a suit for infringement and permits second registration of the same mark provided the second applicant had been continuously using that trademark from a date prior to the use or date of registration of the first proprietor/registered user’s trade mark, whichever is earlier.”   Further, in the case of Peps Industries Private Limited v. Kurlon Limited [CS(COMM) 174/2019], the court while explaining the term ‘prior use’ held that merely adopting the mark does not give right to be a prior user of the mark, rather, continuous and voluminous use must be shown by the person claiming to be a prior user.   The scope of Section 11(4) of the Act was elaborated in the case of Mahesh Gupta v. Dilip Kumar Shukla 2021 (85) PTC 423 (IPAB), wherein, it was held that the mere fact that the respondent secured a registration while the applicant’s trademark application was still pending does not automatically confer superior rights upon the respondent. In trademark law, rights are not solely determined by the act of registration but are fundamentally grounded in the principle of first use. Where the applicant can establish that their use of the mark predates the registrant’s use or claim, the applicant’s mark attains the status of an ‘earlier trademark’ under the Act. This is particularly relevant in the context of Section 34, which recognizes and protects the rights of a prior user over a registered proprietor.   Thus, even if an individual holds a registration, the earlier use of the mark by the applicant, supported by evidence, takes precedence. The applicant’s prior use establishes common law rights that outweigh the statutory rights derived from registration by the other party. This principle upholds the integrity of trademark use and prevents unjust enrichment through strategic or opportunistic registration.   Conclusion While trademark registration serves as prima facie evidence of ownership, the bona fide use of the trademark alongside registration holds an equal significance. The concept of consent given under Section 11 of the Act, holds no significance when applied to a prior user of a trademark.   Often, companies or individuals who have used a trademark prior to filing for registration are compelled to submit their application on a “proposed to be used” basis due to insufficient documentation or lack of evidence supporting prior use. This can lead to the loss of priority in asserting rights under Section 34 of the Act and may hinder their ability to