The Central Consumer Protection Authority, the body established under the Consumer Protection Act, 2019 to regulate matters relating to violation of consumer rights, unfair trade practices and false or misleading advertisements, recently issued “Guidelines for Prevention of Misleading Advertisements and Endorsements for Misleading Advertisements, 2022” (the “Guidelines”). The Guidelines came into effect on June 9, 2022, with an aim to curb concerns around misleading advertisements that falsely describe a product or service; or mislead consumers as to the nature, substance, quantity or quality of such product or service; or constitute an unfair trade practice; or deliberately conceal important information. The Guidelines apply to manufacturers, service providers or traders whose goods, products or services are the subject of advertisements, advertising agencies and endorsers. Unlike the Cable Television Networks (Regulation) Act, 1995, for instance, which has provisions for regulation of advertising on private satellite/cable television channels, or the Press Council Act, 1978, which develops a code of conduct relating to advertisements in newspapers and similar publications, the Guidelines will be applicable to any and all advertisements, irrespective of form, format or medium, including those in the digital space! The Guidelines are, in large part, in sync with the ASCI Code and guidelines framed under it by the Advertising Standards Council of India, a self-regulatory voluntary organization of the advertising industry that aims to maintain and enhance the public’s confidence in advertising. For instance, the Guidelines state that all advertisements must be honest and should contain truthful representations, should not mislead consumers by exaggerating claims and should not mislead about the nature or extent of the risk to consumers’ personal security. The Guidelines also have provisions pertaining to “free claims” advertisements, disclaimers in advertisements (which are akin to the disclaimer provisions in the ASCI Code), advertisements targeting or featuring children and “bait advertisements”. Specifically, advertisements offering goods/services at a low price to attract consumers shall not seek to entice consumers to avail the goods/services without a reasonable prospect of providing such advertised goods/services at the price offered. Pertinently, the Guidelines prohibit “surrogate or indirect advertisements” for goods/services whose advertising is otherwise prohibited or restricted by law, by circumventing such prohibition or restriction, in the pretext of being an advertisement for other goods/services which are not prohibited or restricted to be advertised by law. The Guidelines, however, allow use of a brand name or company name on/in relation to goods and services whose advertising is not prohibited or restricted by law, even if the same name is applied to goods/ services which are prohibited or restricted from being advertised by law. The Guidelines also enlist certain “duties” of the advertisers and advertising agencies that mirror the ASCI Code. For instance, advertisers must ensure that advertisements do not contain any reference to a person or institution which confer an unjustified advantage to the advertisers or ridicule such person or institution. However, a relaxation in terms of “obvious untruths” or “exaggerations” that may be clearly seen as humour or hyperbole and are not likely to be understood as making a literal or misleading claim, are permitted. Moreover, the Guidelines compel advertisers to reflect genuine opinion of the individual or group making any representation in the advertisement and mandate due diligence for endorsement of advertisements. Celebrities endorsing products in advertisements should watch out for this provision. Given that the Guidelines cover advertisements in all forms, formats and media, even unconventional forms of advertising will now have to adhere to the Guidelines’ provisions. The Guidelines would also play a significant role in legal actions involving comparative advertisement/ disparagement.

The power of social media as a virtual platform for disseminating content created by an individual or entity is limitless. Social media is, by and large, the most powerful and easily accessible tool for the common man to publish and broadcast his/her work of intellect to the public at large. With such ease of dissemination of one’s IP through social media platforms, comes the risk of IP misuse and violation. In today’s digital age, IP violation on social media platforms is not uncommon. Such instances of IP violation naturally bring the intermediaries, that these social media platforms are, to the forefront. Recently, in the case of Living Media India Limited & Anr. v. Aabtak Channel.com (John Does) & Ors[1], the Delhi High Court restrained the defendants from using the plaintiff’s name and mark ‘AAJ TAK’ without the plaintiff’s authorization on various social media platforms, including Twitter, Facebook and Instagram. The court ordered these social media platforms to take down all the infringing posts, pages and videos referring to the plaintiff’s mark, AAJ TAK. In another instance, in the cases of Facebook Inc. v. Surinder Malik & Ors[2] and Instagram LLC v. Surinder Malik & Ors[3], the Delhi High Court emphasized that, while online intermediaries, such as Facebook and Instagram, may not perform an active role in posting of the infringing contents on their platforms, being facilitators of the infringement, they are under an obligation to pull down such content as and when it is brought to their notice/ knowledge. Social media giants, Facebook, Instagram, YouTube, Twitter and LinkedIn, are often seen removing or taking down content infringing on the right holders’ IP rights from their sites. These platforms have explicit rules and procedures to protect IP owners’ rights and take down any infringing content that they may be hosting. Both Facebook and Instagram, for instance, have a ‘Rights Manager’ tool, which helps protect IP holder’s content by detecting any content matching the original work. They also have mechanisms in place to report IP violation on their platforms by identifying, clearly, the link/ post that is believed to be violating the IP holder’s rights. In 2020, pursuant to a case of copyright violation in the United States, Instagram released a statement that it does not encourage embedding and emphasized that an explicit consent is always needed from the original owner of any work before any copyrighted content is posted on Instagram. The video sharing platform, YouTube, also has vast IP protection policies in place. One can file separate copyright takedown and trademark takedown requests through a simple webform available of this site. Likewise, Twitter has laid down a specific trademark policy as to what constitutes infringement and what doesn’t, and a copyright policy describing what is fair use and what isn’t. With vlogs and reels doing the rounds on the Internet, copyright and trade mark owners’ IP rights are increasingly at stake. One should, however, note that social media platforms can be held responsible for IP violation only to the extent the IP holders are vigilant in safeguarding their rights and bringing them to the intermediaries’ notice. Courts have, time and again, held that intermediaries can be held liable only when the users themselves provide requisite information to them for a successful take down. If an intermediary, does not have reasonable “knowledge” of the infringement taking place on its platform, it can rely on the ‘Safe Harbour’ defense under the Information Technology law of the country [1] CS (COMM) 193/2022 [2] CM (M) 1263/2019 [3] CM (M) 1267/2019

In a recent decision, the Delhi High Court ruled on the scope of honest and concurrent use under the Indian trademark law. In a recent case filed by a plaintiff claiming rights in the KEI mark, the defendant contended that it has used the KEI mark in relation to electronic goods since the year 1966. The plaintiff refuted this claim. The court held that since the marks and the rival goods are similar, any use of the KEI mark by the defendants would amount of infringement. Further, the court noted that the defendant, while updating its mark over the years, removed the main feature of its erstwhile KEI KWALITY mark, i.e., the reference to Kwality Electrico India and merely retained the letter combination KEI thus rendering the rival marks identical. More pertinently, the court ruled on the aspect of honest and concurrent use in this case and held that honest and concurrent use cannot be a defense to infringement and that the section envisaged under Indian trademark law is only applicable to application for registration of the mark. Thus, the court noted that the plea of honest and concurrent use by defendant, even if it exists, is not statutory envisaged as a ground on which a plaintiff, whose marks have been infringed, can be denied an injunction. This judgement takes a different view on honest and concurrent use being available as a defense to action for infringement. While such a judgement is quite helpful from the view of a plaintiff who has invested tremendous amounts of resources in promoting and using its marks, it will be interesting to see how defendants who have honestly conceived their trademarks will now be able to defend use of such trademarks.

Movie business or Showbiz, as it is colloquially called, has often been the aspiration of the middle-class population. The larger than life hero, the beautiful heroine, the cunning villain all come together to create a big-screen big ticket experience that, to this day, remains magic for a large number of the Indian population. However, what usually translates to the screen barely showcases and recognizes the hardwork and toil of various technicians, designers, associates who spend day and night creating this so called ‘Movie Magic’. However, many cinephiles or film intellectuals will argue that a movie is conceived at the stage of its script. The script is, in very basic terms, a copy of the narrative or the story which is then translated to camera and then released in theatres. It is this script that often becomes a bone of contention and a reason for dispute between various parties. Since the script contains a story and/or a narrative, it is a literary work which is capable of copyright protection in India. However, the legal principle as regards to literary works is well-established. The idea-expression dichotomy clearly states that “There can be no copyright in an idea, subject matter, themes, plots or historical or legendary facts and violation of the copyright in such cases is confined to the form, manner and arrangement and expression of the idea by the author of the copyrighted work.” Despite the above-noted well-established principle, there have been numerous cases that have come in front of various courts across the country. However, one common theme that has been noticed in all of these cases is that the plaintiffs usually move court seeking a stay on the release of the film/show, as the case may be, on the ground of copyright infringement, very close to the actual release date. This practice was severely criticised by Justice G.S. Patel in Dashrath B Rathod & Ors.v. Fox Star Studios India Pvt. Ltd. & Anr. where the plaintiff claimed that the Hindi motion picture ‘Phillauri’ was a substantial reproduction of his own copyrighted work. The court took cognizance of the fact that the trailer of the movie released almost six (6) weeks ago and that the plaintiff had sent a legal notice in February, 2017 which was replied to at the start of March 2017 itself. However, the plaintiff waited another twenty (20) days before instituting the suit with the movie’s release just a couple of days away. Justice Patel took a very harsh view of the situation and stated that parties cannot come with their claims at the eleventh hour and expect the court to drop all other work to hear such matters. However, he was also quick to clarify that an exception can be made when the plaintiff did not have any prior knowledge of the defendant. The court even went on to call such cases an ‘unconscionable indulgence’. Similarly, in Vinay Vats v. Fox Star Studios India Pvt. Ltd. & Anr., the Delhi High Court reiterated the idea-expression dichotomy and the above-noted Bombay High Court judgment while refusing to stay the release of the movie ‘Lootcase’. Pertinently, the court stated that the trailer of the movie was released on July 16, 2020 and the promos have been in public doman since June 2019 yet the defendant waited till the eve of the release of the film to file the suit. More recently, the same question came up before the Bombay High Court where a stay was sought on the release of the Hindi film ‘Jersey’ which is an official remake of a Telugu film by the same name. The plaintiff claimed that the movie is in violation of his rights owing to a script titled ‘The Wall’ which is registered under his name. The plaintiff claimed that he had issued a cease and desist notice in January 2022. The plaintiff also went on to apprise the court of the response received from the defendants. On the other hand, the defendants argued that it had issued a public notice in August 2019 informing the public of the Hindi remake and inviting objections. The defendants also stated that the Telugu film has already had a theatrical release and OTT runs in India. Lastly, the defendant claimed that the Hindi remake has been in the news for a while now and it is inconceivable that the plaintiff only came to know of the remake in December, 2021, as alleged. Taking into account the above facts, the court held that in light of the delay and laches, it would not go into the claimed similarities between the scripts, and refused to grant a stay on the release. From the above illustrative judgments, it is apparent that courts have stopped looking favourably at suits filed at the last minute to stay the release of a film/show, barring exceptional circumstances. The principle behind them appears to be simple that the court cannot assist a person who has wilfully slept on its rights and allowed the other party to incur expenses and labour. Such a party can then not be allowed to approach the court at the eleventh hour and claim relief as a matter of right. The above-noted precedent also aims to strike a balance between the ‘alleged’ rights of the holder as well as the party creating the content so that the latter does not reach a stage where it has incurred huge expenses and is subsequently forced to stay the release or delay it and thus incur additional losses. Clearly, the showbiz has more to it than meets the eye!

The Delhi High Court, in two writ petitions[1] filed by Phonographic Performance Limited (PPL), a registered company dealing with sound recordings and broadcasting, ruled on a long saga between copyright societies and the Registrar of Copyrights (“Registrar”). Copyright societies are legal bodies created under the Copyright Act, 1957 to protect the interests of authors and artists from exploitation by publishers and potential infringers by providing them a better bargaining power to monetize their creative works. Their primary functions include management of royalties and regulation of issuance of licenses on behalf of owners of creative works. The writs trace their roots to the Copyright (Amendment) Act, 2012 (“Amendment Act”) that brought about some changes in the functioning and registration of copyright societies. Pertinently, the Amendment Act mandated all copyright societies to file for re-registration with the Registrar within one year from the commencement of the new law. The writs were a result of PPL being denied registration as a copyright society pursuant to the enactment of the Amendment Act, and Recorded Music Performance Limited (RMPL), in contrast, being accorded such registration for the same class of work, i.e., sound recordings. Pertinently, under the law, only one copyright society can be registered for administering the rights relating to the same class of work. By way of background, PPL had filed for re-registration as a copyright society in 2013, which was kept pending for eight years. A year later, PPL requested for withdrawal of its application and continued to carry on its business of licensing and managing royalties as a corporate entity. The Registrar, however, rejected PPL’s withdrawal application in 2014 reasoning that a unilateral decision cannot be taken by PPL, especially when interests of right holders were involved. PPL then filed for re-registration again in 2018. In the meantime, both the Registrar and PPL had corresponded on several occasions, making it apparent that the Registrar was trying to keep PPL’s initial application alive. Three years later, in 2021, the Registrar rejected its 2018 application on the ground that the 2014 application stands as withdrawn, and the 2018 application was time barred. RMPL, however, was granted registration as a copyright society the same year, despite its application being subsequent to PPL’s application. Aggrieved by the arbitrary orders of the Registrar, PPL filed the two writs to quash the 2021 orders. It alleged that the refusal order was unilateral, unreasoned and arbitrary and passed without providing an opportunity of being heard. As per PPL, it had complied with all the statutory timelines prescribed under the new law, including the one year re-filing period. Further, the correspondence between PPL and the Registrar indicated that PPL’s application was under consideration and that, in the meantime, it may continue as a copyright society in the interest of the owners of copyright. To depict the arbitrariness of the Registrar’s order, PPL pointed that Indian Performing Rights Society (IPRS), another copyright society dealing in music licensing, was granted re-registration under the new law, despite an inquiry pending against it. While pronouncing its judgement on March 9, 2022, the Single Judge Bench of the Delhi High Court recorded that the impugned order of 2021 was subjectively silent vis-à-vis the correspondence exchanged between PPL and the Registrar, which revealed that PPL’s application was kept alive. Further, PPL was not provided any opportunity of being heard, which is contrary to established principles of natural justice. The court was also of the view that, if RMPL’s registration was not set-aside, it would prejudice PPL’s chances for registration as a copyright society unless the Government considers registering two societies for the same class of work at the same time. As such, the court directed that PPL’s 2013 application be revived and considered on merits and, as a corollary, RMPL’s registration as a copyright society be set aside. Aggrieved by the judgement of the Single Judge Bench, RMPL filed an appeal[2] before the Division Bench of the Delhi High Court praying that the orders passed by the Single Judge Bench be set aside. The Division Bench, on April 11, 2022, emphasized that, by not conveying acceptance of PPL’s registration and keeping it alive, the Registrar contributed to the muddle of the two copyright societies’ registration in the same class of work. The court, ultimately, suggested that the best solution now would be a pro tem measure where the Registrar considers the application of PPL for registration afresh, pending the outcome in the appeal. Further, the court partly stayed the judgement passed by the Single Judge Bench to the extent its operation set aside the functioning of RMPL as a copyright society. As you’d agree, the conundrum of copyright societies continues… [1] Phonographic Performance Limited v. Union of India &Ors. W.P.(C)-IPD 21 /2021 AND 41/2021 [2] Recorded Music Performance Limited v. Phonographic Performance Limited &Ors. LPA 243/2022, CAV 77/2022

A recent decision[1] by the Delhi High Court has provided clarity on various issues of patent law that had not been examined by Indian courts so far. These include parallel imports’ exemption under the Patents Act, 1970, the doctrine of equivalence and enforceability of a patent towards its expiry. In the present matter, Sotefin SA filed a suit for infringement of its registered patent for “carriage for the horizontal transfer of motor vehicles in automatic mechanical car parks” against multiple defendants. The suit patent for the plaintiff’s product, commonly known as a dolly or a silomat dolly, was registered in March 2002 and was valid until March 2022. During the validity of the patent, the plaintiff came across pictures of the defendants’ smart dollies, which resembled the plaintiff’s silomat dollies and asserted its rights against the defendants. The court then appointed a team of scientific experts to compare elements of the parties’ respective dollies with a view to ascertaining whether the plaintiff’s patent was infringed. Based on the report submitted by the scientific advisors, the plaintiff argued that this was a case of infringement since seventeen (17) of the nineteen (19) sub-elements between the respective dollies were common. The plaintiff argued that the claims in the suit patent had identical input-output functions to the smart dollies since both had the same end result of acting as dollies for cars. The defendants, however, disputed these claims. They argued that two (2) essential elements were absent in their smart dollies. Further, the plaintiff had adopted an incorrect test of comparing the rival products, as opposed to comparing the smart dollies to each of the claims of the suit patent. The defendants further argued that they imported the dollies into India and were, thus, exempted from liability due to the “Bolar Exemption”. The crucial question before the court was to determine whether the two (2) dissimilar elements between the dollies were “essential” in determining infringement of the patent. The court, based on arguments by both parties, held that the absence of the two (2) elements could not be construed to be so essential that it would render the dollies to be substantially different. It noted that there could be cases of non-literal infringement, where each and every component of the patent specification is not found in the infringing products. However, this does not rule out infringement altogether. Pertinently, the court noted that it is the pith and marrow of the invention which is to be looked into while comparing the specifications. It also emphasized that patent protection is territorial in nature and that importing a product that infringes an existing patent is against the Indian patent regime. On the issue of granting an injunction in the plaintiff’s favour based on its rights in a patent that is close to expiry, the court observed that the monopoly granted to exploit the invention, without competition, during the term of the patent was available even when the patent was on its last legs. It stated that Indian patent law does not make any distinction between a new or a concluding term. Rather, the benefit of registration is applicable to the entire term of the patent. Thus, the court stated that it is duty bound to enforce rights of a patent holder during the term of the patent, irrespective of the balance period of the term of the patent. Ultimately, the court granted an interim injunction in favour of the plaintiff, restraining the defendant from making, selling, exporting, importing, or offering for sale, smart dollies, which were found to be infringing on the plaintiff’s silomat dollies. [1] CS(COMM) 327/2021

This is the final part of four-part analysis of the concept of IPRs in creations of AI. The first three parts of this series discussed various phases of the affair between AI and IP law. Here’s a quick recap! The first part of the blog series looked at the meeting of AI and IP and what that meeting ensued in terms of granting legal personality to AI for the purposes of the IP law. The second part looked at this confluence from a global lens and considered how other countries are trying to resolve the issue of AI’s legal personality. While, theoretically, it seems possible to grant a legal personality to AI, there is still some hesitation in taking steps in this direction as some questions regarding implementation remain unanswered. The third part raised three such questions, namely, ownership of IP upon grant of legal personality to AI, claim of moral rights, and enforcement rights. This blog is an attempt to explore these issues further and suggest solutions to resolve these issues. One of the questions highlighted in part three of the series concerns conferring IP rights on AI. This question arises from the fact that, as on date, the principles and law governing IP do not recognize a non-human author. However, the rate at which technology is progressing and the ever-increasing ability of AI to create original and independent works, it is imperative to consider whether an AI can be considered an author for the purposes of law. There are a few possible solutions to address this issue. One way to resolve this issue is to expand the scope of an author and to include non-human elements within the definition. Some believe that assigning authorship to AI would encourage innovation and growth. While in theory it seems like a plausible solution, it can pose serious repercussions from a practical enforcement standpoint. Practically, non-humans can neither claim nor be held legally responsible in a court of law.[1]  One way to get over this hurdle would be to provide ‘guardianship’ rights to a person or a company who may act on behalf of the AI. Another possible solution is to expand the scope of the relationship between employer and employee under the ‘made for hire’ doctrine.[2] In a work made for hire, a corporation can hold IP rights in a work which is created by someone. A corporation is a non-human entity which is legally recognized as capable of acquiring copyright protection as authors of the work under the law. Likewise, granting a legal personality to an AI would open the doors for an AI and it could also own an IP right. Just like in the case of corporations, the term of the copyright could be limited for an AI. Moreover, the programmer of the AI could be given rights to be the owner of the copyright on behalf of the AI. Some proponents have also proposed the doctrine of joint work as a possible solution. Joint work doctrine is a compromise wherein both AI and the person who programmed the AI to be joint owners of the copyrightable work. However, this is a short-term solution to a long-term problem as it does not take into account the works created by a fully autonomous AI that has created a work without human contribution. These potential solutions can be used to resolve another issue pertaining to enforcement of IP rights in creations of AI. However, for enforcing a right both authorship and modicum of creativity must be shown. While it is possible to show authorship, the idea of creativity in the creation of another creation which is eventually made by a human is still quite murky. Originality and creativity subsisting in a work would perhaps be determined on a case-to-case basis. However, once granted, it may be possible to enforce these rights through guardians of AI as discussed above. As regards moral rights, it is pertinent to understand the reason behind the introduction of moral rights in the sphere of IP. Moral rights are a recognition of the personal[3] interests of an author/creator and their bond with their creation. This right is internationally recognized and enshrined in Article 6 bis of the Berne Convention which includes ‘Right to Integrity’ and ‘Right to Attribution’. So, the question is whether an AI can claim moral rights? If considered within the sphere of existing laws and principles, then the answer would be ‘No’. This is because moral rights pertain to honoring the creator and the work and treating their work with dignity. These rights have been created to protect the reputation and legacy of a creator.[4] The question which then arises is whether an AI has such interests. Clearly honor, reputation and legacy are aspects of personhood and ideological values which a machine, per se, cannot possess. Accordingly, an AI cannot claim damages in the event of distortion or mutilation done to its work and hence cannot monetize this right. The only prong of moral rights which may be extended to an AI and its creation is the right to attribution or paternity right i.e. the right to claim authorship over the work.[5] This is based on an assumption that the an AI would become extremely autonomous in the future that it will be able to create a work without human contribution. Here it is imperative to appreciate the difference between human intervention and human contribution for the purpose of granting an IP right. While an AI would be created and would interact with humans which could amount to human intervention, it would be too far-fetched to claim human contribution sufficient for claiming an IP right, in a work created by an AI, which indirectly stems from its programmers or developers work.[6] Although the above-mentioned possibilities explore the manner in which an AI generated work can be granted protection within the legal framework without completely destroying it or its underlying principles, these solutions come with their own set of problems. Many are of

This post is the penultimate part of the four-part series on Artificial Intelligence (“AI”) and its affair with Intellectual Property (“IP”) Law. The first and second part of the article series can be accessed here and here. From a theoretical point of view, providing IP rights to creations of AI might seems possible. The recent discussion around the world points towards such possibilities. However, the concept, from a practical point of view, needs to answer many questions before implementation. One of the most prominent questions while considering the grant of IP rights for works created by AI is the determination of the party who will hold and utilize such rights. Unless and until commercially used, the purpose of providing IP protection to any creation will not be fulfilled. In case of AI, the creation can be only utilized by a human being, as the purpose of an AI itself is to assist humans. Nevertheless, considering a situation, where an autonomous AI creates an IP, the determination of who may utilize it, unless it is considered just akin to computer generated[1] work, poses serious dilemmas. The relation between such AI, which may have created the work autonomously and a human being cannot be considered under the traditional concepts of law. While statutes have considered the possibility of difference between the creator of an IP and the owner of the IP, and have provided for determination of rights between such parties[2], such determination is based on the contractual nature of the relationship between the parties. In the case of an AI, it cannot be said that such relations can be created, as AI lack the inherent capacity to be a part of valid contracts.[3] The field of copyright possesses its own specific set of challenges while looking into creations by AI. Moral rights are one such aspect. Moral rights are an incentive for authors to create more works. However, these incentives or attribution is not necessary for an AI to create any work.[4] Further, it cannot be said that there will be creative effort, rather than pre-loaded codes, that enables an AI to create a work that can be considered under scope of copyright laws. In addition to this, merely recognizing minimal intervention of a human, who does not assist in actual creation of the end result, for the sake of providing copyright, might lead to lowering the incentives that humans have to create a work. Further, providing identical protection to works of an AI as that of humans is also a question to be considered. Interestingly, there have been instances where courts have denied moral rights of non-human authors, as laws do not provide for such rights.[5] Even setting the moral rights issues aside, the originality element of works is another challenge. Considering the march of law from ‘sweat of the brow’ to ‘modicum of creativity’, a detailed analysis might be necessary to ascertain the level of originality in the spectrum, that may qualify the work generated by AI for copyright protection. Nevertheless, courts have previously interpreted laws and observed that copyright cannot be attributed to a work unless the human element is present, even though the work in itself may be original.[6] Another issue that has to be answered is the enforcement of rights in a work created by an AI. Unless the concept of originality and authorship is not clarified, enforcement of rights in works of AI might not be possible. Defence of not having originality in the work will be the prime ground taken by infringers of rights in works generated by AI. Further, considering the fact that by questioning human intervention in works created by AI, especially when it is autonomously generated, infringers might be able to escape liability. While considering the aspect of human intervention for providing IP rights is important, it is equally important to remember that the purpose of investing in development of AI that can autonomously generate work will be defeated, if circumstance-based exceptions are not given. In addition to the above, it is also pertinent to note that, works created by AI, also cannot be excluded from infringing the rights of a human author. In such a situation, who does the copyright owner take action against? Therefore, finding answers to such problems will be a challenge faced during the evolution of law. Along with the above, interpretation of law as it stands, is likely to cause confusion vis a vis trade and utilization of works created by AI in different jurisdictions. As discussed previously, recent developments in different jurisdictions have been contradictory as regarding whether protection can be provided to creations of AI. Courts in the United States in many instances have observed the necessity of a human element while creating a work and hence works of AI are not protected in the US.[7] Courts in Singapore have also clearly laid down that identification of a human author is always necessary while providing copyright to a work.[8] On the other hand, Chinese and Australian courts have in a way accepted IP rights in creations of AI.[9] From the procedural point of view, while South Africa and Canada[10] have accepted rights of AI in its creations, United States of America, United Kingdom and European Union are of the opinion that such rights in creations of AI cannot exist in accordance with current statutes.[11] India even though, has accepted the co-authorship of AI and granted copyright protection, has recently initiated a suo moto procedure to withdraw the protection granted.[12] Hence such differences in the manner of interpretation in each jurisdiction is likely to create a hindrance towards harmonious protection of works created by AI. In short, while grating protection to creations of AI can be a very progressive step and a boost to the industry, there are serious questions that must be answered before thinking about providing such protection. In the final part of this series, we will be providing some suggestions to resolve these issues. [1] As of now, statutes consider the humans

Trademarks represent much more than just the origin of goods or services…they represent a pledge to deliver quality products/services, communiate brand owners’ values and ideologies and embody consumers’ expectations. Good brand experiences not only compel consumers to stay loyal to their preferred brand, but they also incentivize consumers to market their brand of choice to their peers. With the increasing awareness of inevitability of sustainability for human existence amongst governments, businesses and end consumers alike, there appears to be a shift towards adopting eco-friendly products and developing “green” brands that promote sustainability. Brand owners and governments worldwide are consciously taking steps to reduce their carbon footprint by utilizing green technologies, making use of natural raw materials, moving away from synthetic goods and adopting sustainable habits. The Science, Technology and Innovation Policy supporting use of intellectual property to combat climate change, and the Green Business Scheme providing financial assistance for activities that can tackle climate change are some of the initiatives taken the Government of India to promote sustainability. With the shift in sustainability being a priority on corporate and governmental agendas and an increasing population choosing eco-friendly products, the role of trademarks in developing green brands cannot be overlooked. Trademarks, due to their inherent nature of being source identifiers, can bring the best in sustainable products by instantly conveying that the products bearing the marks, or services offered under the marks, are “green”. Pertinently, the Trade Marks Register has not remained unaffected with the increased awareness about the need to promote sustainability even at a grassroot level. There has been a surge in applications for trademarks incorporating the terms ECO, BIO, E, RE and the like, images of leaves or the Earth or the colour green, to indicate that goods/services offered are eco-friendly. CONSCIOUS by H&M and JOIN LIFE by ZARA for products produced using eco-friendly processes and sustainable raw materials, DINEARTH for alternative source tableware and crockery products, MAMAEARTH for toxin free natural beauty care products and BIOTIQUE for skin and hair care developed from ayurveda with 100% botanicals are good examples of green trademarks. The most visible hurdle faced by brand owners in seeking statutory protection for such marks is the tendency to weaken their distinctive character by making them descriptive of the kind or quality of the goods/services covered by the trade mark applications. In India, it is not uncommon for such trade mark applications to receive an office objection on absolute grounds. Adding design or graphic elements, claiming colors in a mark, using different font stylizations or a combination of these could assist in pre-empting such an objection. Disclaiming exclusive rights in the descriptive elements of the mark may also pave the way to registration. Adoption of suggestive marks, that require a consumer to go through a series of mental steps before concluding the nature of goods/services the mark pertains to, and use of taglines with inherently distinctive terms, are also effective ways to relay sustainability of a product without comprising on the registrability of the mark in question. Certification Marks can also be used as an effective tool to promote sustainability by conveying to consumers that a product or service meets the minimum standards set by an organization to be tagged as “green”. The Ecomark, for instance, is a certification mark issued by the Bureau of Indian Standards (the national standards body of India) to products conforming to a set of standards aimed at the least impact on the ecosystem. The Ecomark Scheme covers various product categories, such as soaps and detergents, food items, packing/packaging materials, electrical and electronic goods, food additives, wood substitutes, cosmetics, plastic products, textiles, and many more. GreenPro, issued by the Confederation of Indian Industry (CII), is another such mark. It is a mark of guarantee representing that the product bearing this mark is environment friendly throughout its life cycle and, ultimately, empowers customers with product sustainability information. Such certification marks, therefore, help environmentally conscious customers to make informed choices to buy eco-friendly products. The role played by trademarks in empowering end users with product sustainability information and steering them towards purchasing of sustainable products is often underestimated. Green trademarks, that identify eco-friendly products, not only identify the brand’s contribution towards sustainability, but also influence consumers into making eco-friendly choices in their day-to-day lives. In this manner, green trademarks act as effective marketing tools for environmentally conscious businesses and tend to give them an edge over businesses that simply focus on profitability.

The term “metaverse” has become widely popular. While the term may seem new to some, it has actually been around since the early 90’s, when it was coined by sci-fi writer, Neal Stephenson, to describe a 3D virtual space where humans interact using avatars. Today, metaverse is used to describe a digital space that combines aspects of social media, online gaming, virtual reality, augmented reality and cryptocurrency. The metaverse has opened endless possibilities for different industries, including the fashion industry. Various fashions brands, including luxury brands, such as Gucci, Louis Vuitton, Balenciaga, Dolce & Gabbana are developing unique strategies to engage an increasingly sizable pool of consumers that inhabit the metaverse. A few such strategies include, organizing virtual fashion shows, creating augmented reality experiences such as virtual try-ons that enable consumers to try on digital representations of physical garments, providing digital clothing for avatars in video games and uploading designs for real and digital clothing onto the blockchain (so these files can be sold as NFTs). The entry of luxury brands in the virtual world has raised concerns regarding protection of Intellectual Property rights in the metaverse. Recognizing the growing need to protect their IPR in the metaverse, brands such as Ralph Lauren, DKNY and Nike have already filed trade mark applications in the United States and the European Union for goods/services relating to the metaverse, such as “featuring virtual clothing and accessories for use in online virtual worlds” (Class 35), “online, non-downloadable virtual clothing and accessories for use in virtual environments” (Class 41), and “downloadable virtual goods, namely, computer programmes featuring footwear, clothing, accessories” (Class 9). Owning a brand/trade mark, always carries with it the risk of trade mark infringement, even in the metaverse, and brands have become proactive in protecting their trade mark rights in the virtual world. Recently, Hermès took legal action against a digital artist, Mason Rothschild, whose Birkin bag-inspired NFT artwork, MetaBirkin, that previously sold for $23,500 in June 2021, launched a December follow-up collection. Hermès took a public stance that the NFTs “infringed upon the intellectual property and trademark rights of Hermès and are an example of fake Hermès products in the metaverse” and later on filed a trade mark infringement and dilution lawsuit against Rothschild in the US. It will be interesting to see how the lawsuit plays out eventually as Rothschild had, previously, on receiving a legal notice from Hermès, made a public statement that “I am not creating or selling fake Birkin bags. I’ve made art works that depict imaginary, fur-covered Birkin bags.” The artist had also claimed that the First Amendment provides protection to create art that is a commentary on culture, an argument known as “fair use”.  However, because Rothschild did financially benefit from the sale of the MetaBirkin, and there is also a strong likelihood of average consumers associating the MetaBirkin with Hermès, the MetaBirkin could be perceived as more akin to counterfeits than cultural commentary. Additionally, Hermès can also get relief under the laws of trade mark dilution, by arguing that the unauthorized use of the MetaBirkin by Rothschild, is likely to impair the distinctiveness or tarnish the reputation of its “famous” Birkin marks. Consequently, NFTs and digital fashion have become prudent for fashion brands to stay relevant, with various platforms letting creators design and sell digital fashion. Luxury fashion brands are getting in on the action by partnering with gaming publishers such as Roblox and Epic Games to launch their products in the metaverse. But with some designs created by brands and others created by fans, comes the potential confusion among consumers as to whether they are buying items created by brands or by third-parties. The amount of confusion has to be seen from the point of view of an average consumer. Further, creators are not aware of IP rights of brands and end up infringing them one way or another, all in the name of artwork. In such cases, at present, it is only fashion giants like Gucci and Louis Vuitton who are likely to succeed in winning court battles owing to their vast history and global exposure, unlike small brands who have a bigger battle to fight. Hence, it is only in the best interest of the fashion brands to step up and protect their IPR in the metaverse right now. Even though the law is yet to catch up, there are certain trade mark classes that cover virtual goods and virtual spaces. As regards protection of these digital fashion items is concerned, it is possible that the World Intellectual Property Organization may, in the coming editions of the NICE classification of goods and services, include goods/services relating to the metaverse.    As regards Indian fashion brands, the well-known fashion designer, Manish Malhotra, launched India’s first fashion NFT in October 2021, which sold out in seconds. The collection included sketches and GIFs of five couture pieces worn by models/actors such as Deepika Padukone, Alia Bhatt, and Lisa Ray. ‘Illuminous Showstopper’, a custom-made constellation sketch for Kareena Kapoor Khan, got the highest bid of approximately INR 2.8 lakhs. Unlike global fashion brands that have already become a part of the race to get their trade marks registered in the metaverse by filing for applications covering virtual goods and virtual spaces, Indian fashion brands are yet to dive into this arena. In fact, given the number of piratical copies we encounter of famous celebrity outfits designed by renowned Indian designers, these designers will need to quickly move and protect their IPR in the virtual world before their rights are infringed by third-parties in the metaverse. In fact, brands should look ahead and also consider licensing and assigning their trade marks to digital creators and artists in the metaverse in order to retain and commercialize their IPR in the metaverse as far as possible. After all, the metaverse is not about just a good or a service, it’s a digital experience that a brand can own and capitalize upon, and there is a lot of potential