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Posted on September 17, 2020 Authored by Preethika Nannapaneni* Image Source: PYMNTS.com What is ‘Forum Shopping’? In lay-man terms, forum shopping is an act of “choosing” (amongst the possible options) which court to file your case before; to get a favourable outcome. While the Indian legal statutes do not specifically address ‘forum shopping’, it is a settled judicial principle that the litigants are to file their matters before the “relevant authorities”. The Indian law, across various statutes, lays down specifically who these relevant authorities are and defines the scope of jurisdiction for each court. However, owing to the various issues that might come up in a particular case, the jurisdiction may tend to overlap or go beyond one court. Litigants taking an advantage of this overlap for desired adjudication in some cases constitutes “forum shopping”. The Apex Court in M/s Chetak Construction Ltd. v. Om Prakash & Ors. held that “A litigant cannot be permitted choice ‘of the ‘forum’ and every attempt at “forum shopping” must be crushed with a heavy hand”[1]. For anti-trust claims, there have been tussles where litigants approach the High Court instead of the Competition Commission of India (“CCI”) or the appellate tribunal, i.e., NCLAT. In this article, the author would be analyzing a recent judgment passed by the (Competition) Appellate Tribunal, NCLAT: Maj Pankaj Raj vs Secretary[2] on 29th May 2020 wherein the competition appellant tribunal discusses an example of forum shopping and dismisses the case without going into its merits for being barred by limitation. Factual Scenario The applicants in the present case (franchisees of NIIT) raised competition concerns against NIIT limited for abusing its dominant position in the market by involving in anti-competitive agreements, differential pricing, reducing shareholding and poaching clients etc., before the competition commission. CCI held that there were a lot of competitors in the Indian market offering the same courses in the computer education sector and that all these acts committed were in lieu of them operating in a competitive environment and were not arbitrary in nature. Accordingly, no abuse of dominant position was established in the present case and the case was dismissed. Instead of filing an appeal before the NCLAT, which is a specialized forum for competition related cases, the applicants filed a writ petition before the Hon’ble High Court of Telangana. The court, via an order, directed the applicants to file an appeal before the NCLAT as prescribed under the Competition Act, 2002 (“the Act”). Dissatisfied, the applicants then filed writ appeals before the division bench of the Hon’ble High Court which was also dismissed with the observation that the discretion exercised by the learned Single Judge by relegating the applicants to the statutory appellate jurisdiction was not unfounded on fundamental principles of law. Thus, the Hon’ble High Court declined to interfere with the order passed concerning the writ jurisdiction by the Hon’ble High Court. Not being able to succeed anywhere else, the informants resorted to filing an appeal before the NCLAT. However, all of this led to a delay in filing of 708 days. Submissions by Applicants: The applicants argued that the Act lays down that an appeal has to be filed within 60 days of the order being passed; which is extendable if there was a “sufficient cause” for this delay. They justified this delay on the basis of time spent in litigation before the Hon’ble High Court. The reason they gave for not following the prescribed appeal mechanism was because they claimed the judgment passed by the commission to be non-est and against the principles of natural justice and that it was obtained fraudulently.[3] NCLAT’s Final Decision The question that arose was whether this was “sufficient cause” to prevent the informants from filing an appeal as prescribed. The applicants sought relief under the Limitation Act, 1963 to justify the delay of 708 days. However, NCLAT dismissed the submissions made by the applicants and held that any aggrieved person mustn’t be allowed to bypass a statutory remedy available in form of an appeal and invoke writ jurisdiction of the High Court. The purpose of prescribing a different period of limitation under the Act would be frustrated if the ratio of judgments involving the interpretation of the term ‘sufficient cause’ appearing in Section 5 of the Limitation Act, 1963 is applied for interpreting proviso to Section 53B (2) of the Act. Litigants must not be allowed to invoke writ jurisdiction of the high court under the pretext of the judgment passed being non est and against the principles of natural justice. If such happenings were encouraged it would result in a huge number of litigants to indulge in forum shopping. The appeal was therefore dismissed as being barred for limitation.[4] The NCLAT deemed the conduct of the applicants to be disrespectful towards the judicial institutions as a whole. Adamantly finding a recourse elsewhere when there is a specialized institution to cater for exactly that, is uncalled for. The tone and language employed by the franchisees to question the decision-making process of the commission was found to be disrespectful and arrogant. Scope of NCLAT’s Jurisdiction & Competition Law A plain look at the preamble of the Act is enough to understand that it was established in order to curb anti-competitive practices and protect the interests of the consumers while making sure that trade practices enhancing the economy of the country run smoothly. The Act has prescribed a robust statutory mechanism and an appeal mechanism in order to specifically deal with cases prescribed under the Act. It is quasi-judicial body with powers to pass orders, render decisions and give directions envisaged by the legal framework.[5] The Act gives the commission the power to enquire into matters related to anti-competitive agreements, abuse of dominant position, regulate combinations and undertake competition advocacy.[6] The Supreme Court in State Of Andhra Pradesh vs P.V. Hanumantha Rao (D) Thr. Lrs discusses the scope of jurisdiction of the High court under Article 226 which is invoked only when there is a manifest error in the judgment passed or there is a gross failure of justice.[7] As held in Telefonaktiebolaget Lm Ericsson vs Competition Commission Of India,the High Court does not sit as an appellate authority for all matters to correct errors, but it would interfere only if the authority acts beyond its jurisdiction.[8] Keeping the above mentioned in mind, there is no question of NCLAT acting beyond its jurisdiction in the present case. Conclusion The author opines that the present case is a perfect example of how litigants overlook the prescribed statutes to suit their desired outcome. There was no question of whether the applicants had a “sufficient cause” that prevented them from filing an appeal as they chose to file their matter before the High Court and go against the very clearly prescribed appeal mechanism in the act. Litigants going against law and indulging in forum shopping must be dissuaded. High courts usually do not interfere in these matters unless there is a fundamental question of law being discussed. However, not every case of choosing how to proceed with your litigation constitutes forum shopping. There is no definite answer for what constitutes or makes you liable for the same. However, with time, the courts with various judgments have given some sort of bracket to define what it is. The Apex Court in Union of India & Ors. v. Cipla Ltd. & Ors[9] discussed the concept of forum shopping in detail and also listed out various scenarios that could be indicative of the same. Some of them are mentioned below: Moving to a different court for a same relief in order to get the desired outcome.[10] Intentionally creating a situation that causes the litigant to forum shop.[11] Choosing one court over the other because of the views held by that court in a previous judgment that is in contrast with the view of the other court.[12] Continuously filing bail applications till the desired outcome is obtained.[13] Making false allegations against conflict of interest with the judge in order to either change the judge or the court.[14] One thing that remains unanswered is whether the disrespect shown by the appellants towards the court was due to lack of proper legal representation. It is inherent human tendency to look for an option that favours your desired outcome. However, to go beyond what is very carefully laid down in the statutes and the mechanisms set in place to further justice, is a clear disrespect to the law, and an abuse thereof and must be frowned upon. *Preethika Nannapaneni completed her B.B.A. LL.B (Hons) degree from Jindal Global Law School and is currently working as a Legal Trainee at Sapphire & Sage Law Offices. [1] Chetak Construction Ltd. vs. Om Prakash and Ors. (20.04.1998 – SC) : MANU/SC/0294/1998 [2] Maj Pankaj Raj vs Secretary, Competition Commission of India and Ors. (Competition Appeal (AT) No 01/2020) of 29 May 2020 [3] Reference was made to involvement of Mr. Vinod Dhall in the affairs of the firm ‘Advocates & Solicitors’ appearing for one of the Respondents before the Commission to show that the decision of the Commission was engineered through the intervention of Mr. Vinod Dhall who earlier served as the Chairperson of the Commission. Obviously, this was done to demonstrate that decision making process of the Commission was obliquely influenced. [4] Supra [5] Supra [6]https://www.cci.gov.in/sites/default/files/presentation_document/5ahmed_20sep04_20080410185941.pdf?download=1. Accessed 17 Sept 2020. [7] State of Andhra Pradesh v/s PV Hanmantha Rao (Supreme Court of India) of 14th October 2003 [8] Ericcson v/s Competition Comission of India (High Court of Delhi) [9] Union of India & Ors. v. Cipla Ltd. & Ors (Supreme Court of India) of 21st October 2016 [10] Rajiv Bhatia v. Govt. of NCT of Delhi; (1999)8 SCC 525 [11] World Tanker Carrier Corporation v. SNP Shipping Services Pvt. Ltd. & Ors.; (1998)5 SCC 310 [12] Ambica Industries v. Commissioner of Central Excise, (2007) 6 SCC 769 [13] Jagmohan Bahl and Another v. State (NCT of Delhi) and Anr., 2014) 16 SCC 501 [14] Supreme Court Advocates on Record Association v. UOI (Recusal Matter), (2016) 5 SCC 808

Image Source: TheGlassDoor.com Recently, Chanel secured registration for its five-petaled Camellia flower design. The design which gained iconic status after being associated with the brand for years, takes up about 40 minutes to make by hand. The flower has become one of the most instantly recognized emblems of Chanel’s accessories, clothing and jewelry. The flower has become synonymous with the House’s estate and brand name and thus, when used in connection with certain types of goods and services, acts as an indicator of source. The USPTO was initially hesitant to allow protection to the design of a flower which may be simply designed as a three dimensional structure to improve the functionality of the products. Chanel responded by asserting that its use of the flower drawing is not functional. Rather, the the exclusive purpose of the mark is to act as a source identifier for consumers. The brand further argued that the camellia drawing, used on a product, is equivalent to the position and manner as Chanel’s other marks, such as its Double C trademark. The brand has actively been trying to bolster its portfolio of Camellia specific marks across the globe. In some jurisdictions the applications have been successful registered while in others, they are in the pre-registration phase. Reported by Tanya Garg, Senior Editor

Posted on September 9, 2020 Authored by Nishant Mishra* Image Source: BBC.com Recently, India banned 59 Chinese apps including WeChat, Hello, and TikTok as reported earlier here. This ban took place on the grounds of protecting the country’s “sovereignty and security”. On September 2, 2020, the government decided to further ban 118 more apps including the popular gaming app “PUBG” to the disappointment of many. It may also ban Huawei from taking part in the 5G trials. Lately, several western countries have also put restrictions on Huawei. This article discusses the importance of 5G, security threats from Huawei, and the path ahead for India. 5G – The Next Generation Mobile Network 5G is the next generation of cellular technology. Theoretically, 5G can reach a peak speed of 20 Gbps. To put into context, the peak speed of 4G is just 1 Gbps. Another key difference between them is the lower latency period which is just 5 milliseconds for 5G. Latency is the time that passes from the moment information is sent from a device until it can be used by the receiver. Lower latency helps in many real-time tasks such as controlling driverless cars and performing remote surgeries through medical robots which are impossible through 4G and LTE without any delay. 5G will increase the available bandwidth which will lead to a significant increase in the amount of data transmitted. It also promises extended battery life as the 5G network will see a 90% reduction in network energy usage which can lead up to 10 years’ worth of battery life for low power IoT devices. High speed and low latency of 5G networks will help in large amounts of data transmission which will lead to better gaming and video streaming experience. It could become possible to watch 4K, 8K videos without any buffering. “Augmented Reality” (“AR”) and “Virtual Reality” (“VR”) require a lot of data processing but thanks to 5G it will be much easier to experience AR/VR on our mobile apps. It will revolutionize the field of advertisement as advertisers could create more engaging advertisements and can deliver it to their target audience more accurately. However, most importantly it will revolutionize the internet of things (“IoT”). There are billions of IoT devices around the world that are connected to the internet and collecting and sharing data. They range from light bulbs which can be controlled by your smartphones to smart cities having sensors to understand and control climate. 5G promises higher bandwidth and ultra-reliable, low-latency communication which is needed for the next generation of IoT devices such as wireless smart video surveillance, smart cars, smart homes, and real-time remote monitoring in industries and manufacturing units. 5G technology will sit at the centre of the fourth industrial revolution (“4IR”). However, this technology is still evolving. The complexity of 5G technology is such that it needs highly specialized world-class expertise and equipment for its various components along with chip designers, technology providers, and system integrators. The important players in the field of 5G are Ericsson, Samsung, Nokia, Cisco, etc. However, one name that has been an issue of much controversy is that of Huawei’s. Huawei – A Hidden Threat? Huawei is the world’s 2nd largest smartphone-manufacturer after Samsung and as well as the world’s 2nd largest telecommunications equipment manufacturer. It recorded revenue of $64.88 billion in the 1st half of 2020. It is present in 170 countries including India. It holds the highest number of 5G patents and makes the highest number of technical contributions to the 5G standard. It has achieved all these while maintaining its highly competitive price. Despite all this, it has remained a source of controversy for the past few years. On 16th May 2019 the USA added Huawei to the ‘Entity List of the US Department of Commerce‘ (US Bureau of Industry and Security). The US Department of Commerce barred American companies from installing the foreign-made telecom equipment which it deemed a national security threat. It also made it difficult for American companies to sell and transfer their technology to Huawei by mandating a license to do so. The US in total has laid 23 charges against the company. US intelligence alleges Huawei has been financed by the Chinese Government and has close links with the People’s Liberation Army (“PLA”) and Chinese security agencies and they are using it to expand their spying ability which threatens the US’s National Security. There are several allegations against Huawei regarding the theft of intellectual property and trade secrets. It is also accused of having business ties with Iran and North Korea, both of which are under US economic sanctions. Huawei denies all these allegations. However, the links between Huawei and the Chinese government can not be denied. Several officials of the Communist Party of China (“CPC”) are known to participate in the policymaking for Chinese Tech firms. The CPC also has cells established in all large Chinese firms, including Huawei. However, the most problematic of all is China’s National Intelligence Law which mandates all Chinese companies and individuals to support China’s intelligence agencies. Keeping the above factors into consideration, many countries such as Australia, New Zealand, Japan, Taiwan have already banned Huawei. The Way Forward For India Keeping the potential of 5G in mind, it has been classified as ‘Critical Infrastructure’. Critical infrastructure are those physical systems, cyber systems, and assets that are so vital to a country that their destruction would have an adverse impact on a country’s physical and economic security as well as public health and safety. With its immense benefits5G technology may wreak havoc if controlled by hostile powers. The amount of destruction and loss of life that will occur due to distorted signals sent to smart-cars, disruption of communication systems of airlines and railways, or spyware attacks on our financial system or security infrastructure is unimaginable. This is the magnitude of risk that we are facing. The murky relationship between Huawei and the Chinese state is of great concern for India as hostilities between the two countries have increased in the last few years. The increased hostility is fueled by China’s global ambition and its desire to play a big brother’s role in the neighborhood. It has time and again supported Pakistan and tried to put down India in international forums. Allowing Huawei to function in India and take part in the development of our critical infrastructure will thwart our national security. In the current scenario, India can take inspiration from Vietnam which has rejected Huawei on the grounds that they cannot “risk their critical infrastructure just because they (Huawei) offer something cheaper than other companies”. Australia also banned Chinese companies on the basis that the “National Security Concerns” and policy equivalence with China remain the overriding feature of excluding Chinese firms from Australia’s telecommunications sector. The increased cost as a result of using non-Huawei equipment is a price that businesses, and Indian consumers, would need to pay in the favour of greater national security. Conclusion India could also use this opportunity to develop its own 5G infrastructure. This infrastructure may not be cutting edge or the most cost-effective but it would be the most secure. This could be a step towards indigenization of high technology products in India. The government could enable an ecosystem consisting of private enterprises and universities/research institutes which will drive innovation in this field. This ecosystem may produce future telecommunications technologies such as 5G and onwards. For this model to succeed, the government has to provide greater operational freedom and flexibility to our universities as well as private players. The 21st century will be driven by Techno-nationalism. Some experts argue that hostilities between the US and China are an earlier form of it. India needs to prepare itself for such conflicts in future. Securing its 5G infrastructure would be a positive step in this direction. Nishant Mishra is a 2nd-year law student at Gujarat National Law University. He has a keen interest in Intellectual Property law and emerging technologies.

Photo Source: Business Korea News Apple Korea has been under investigation by the Korea Fair Trade Commission (“KFTC”) over allegations it abused its dominant position by forcing mobile carriers to pay for advertising and warranty repairs. Apple has agreed to fix “unfair” terms with mobile carriers as part of its proposal. This is not the first-time apple is facing allegations for abuse of dominance and imposing unfair terms. A similar case has also been filed with the European Commission by Spotify. In March, French Antitrust Authorities found Apple guilty of anticompetition behavior and fined the company for USD 1.23 billion. The KFTC has focused on two allegations: Apple’s misuse of the advertising fund collectively raised along with other mobile carriers, by releasing advertisements only for apple’s products; and Apple forced the mobile carriers to bear certain after-sales service center running cost. Apple has proposed measures to address antitrust concerns and offered to provide 100 billion Korean Won (USD 84.02 million) worth of support programs for small businesses, consumers and others, the country’s competition watchdog said on Monday. Out of this 100 billion won, 40 billion won will be utilised to build a research centre to aid development of small manufacturers and 25 billion won to set up an academy to offer education to developers. If the KFTC accepts this proposal, it could set precedent to levy penalties that help support the market and try to uplift it from potential damage caused by giants in the industry. Reported by Tanya Garg, Senior Editor [ORIGINALLY POSTED ON SEPTEMBER 6, 2020]

Posted on September 2, 2020 Authored by Nikita Das* Image Source: Microsoft The recent decision of the Court of Justice of the European Union (“CJEU”) invalidating the European Union-United States ‘Privacy Shield’ mechanism and contouring the applicability of the Standard Contractual Clauses in the Max Schrems Case[1] is certainly hinting towards the dawning of a geopolitical phenomenon across the globe. It has opened a can of worms and brought ambiguity over how companies and organizations have to deal with the obligation in the short and long term and its economic impact on them. CJEU focused on the protection given to the individuals under the Charter of Fundamental Rights of the European Union (“EU Charter”) and based its decision on the inability of the United States to provide a level of protection which is equivalent to that guaranteed by the EU Charter. The problem arose from surveillance programmes in the US based on Section 702 of the Foreign Intelligence Surveillance Act (“FISA”) and Executive Order 12333. In particular, CJEU in its decision emphasized on couple of points: 1. Paragraph 176 of the court order states that a national/domestic legislation in question should meet the principle of “proportionality and necessity” as laid down in Article 52(1) of the EU Charter. “Lastly, in order to satisfy the requirement of proportionality according to which derogations from and limitations on the protection of personal data must apply only in so far as is strictly necessary, the legislation in question which entails the interference must lay down clear and precise rules governing the scope and application of the measure in question and imposing minimum safeguards, so that the persons whose data has been transferred have sufficient guarantees to protect effectively their personal data against the risk of abuse. It must, in particular, indicate in what circumstances and under which conditions a measure providing for the processing of such data may be adopted, thereby ensuring that the interference is limited to what is strictly necessary. The need for such safeguards is all the greater where personal data is subject to automated processing”. 2. Paragraph 192 of the order states that data subjects are not granted any rights actionable in the courts against the US authorities, from which it follows that data subjects have no right to an effective remedy as required by Article 47 of the EU Charter. “Furthermore, as regards both the surveillance programmes based on Section 702 of the FISA and those based on E.O. 12333, it has been noted in paragraphs 181 and 182 above that neither PPD‑28 nor E.O. 12333 grants data subjects rights actionable in the courts against the US authorities, from which it follows that data subjects have no right to an effective remedy.” The question that arises here is that while CJEU expects non-EU countries to meet the proportionality and necessity prerequisite and provide actionable rights to individuals when their data is used for surveillance with respect to national security purposes, would the same standard be imposed on EU member states or UK? The following comparison of data surveillance laws applicable in some of the European countries like France, UK and Sweden will lend some perspective on it. United Kingdom The surveillance activities undertaken for national security investigation purposes by local government, police officials or other law enforcement bodies (e.g., MI5, MI6) are governed by the Regulation of Investigatory Powers Act 2000 (“RIPA”).In an ideal scenario, a court should be providing a judicial warrant for the surveillance activities; however, under Part 1 of RIPA, an interception warrant is granted by the Home Secretary if he/she believes that the interception is necessary in the interest of national security. Section 15(2) obligates the Secretary to assess if the surveillance activity meets the necessity and proportionality requirement. Now, the question arises – if the individual has a right to challenge against the secret surveillance activities? The answer is in the negative as RIPA expects the interception warrant to be kept confidential and in fact considers it a criminal offense if anyone having knowledge of the issuance of an interception warrant fails to keep confidential all matters relating to it. So, there is no scope of challenging the intrusion when information about it is not provided to the individual at all. France The French law governing surveillance activities is Loi 2015–912 du 24 julliet 2015 relative au renseignement (Law No. 2015-912 of July 24, 2015 relating to intelligence). Article L.811.3 of the law provides a right to the specialised intelligence services for collection of personal data for multiple undefined purposes justifying surveillance such as “national security” and “major foreign policy interests”. It permits the internet service providers to install scanning tools (known as “black boxes”) that collect and analyse metadata of internet users. Moreover, the law allows the Prime Minister to authorize intrusive surveillance activities in consultation with the administrative authority responsible for the oversight of interception surveillance (National Commission for the Control of Intelligence Techniques), whose opinion is not binding on the Prime Minister. Like U.K, the French surveillance laws also do not provide citizens under surveillance to have any legal recourse against such actions. Sweden The digital surveillance activities for defence intelligence activities conducted by the governmental bodies are regulated by the Svensk författningssamling [SFS] 2008:717 (Act on Signal Surveillance for Defence Intelligence Activities). This legislation, in particular, prescribes for the intrusions into any cross-border communications. In fact, the law specifically under Section 2(a) states that “Collection may not refer to signals between a sender and recipient who are both in Sweden” which implies that the personal data originating from foreign land can be accessed by the given bodies for national security purposes which makes the law comparatively similar to what is given under Section 702 of FISA. Although Sweden, under this law, has allowed only the surveillance activities to take place in case of a suspected serious crime and the judicial body (Defence Intelligence Court of Sweden) to authorize such collection of information, it does not really balance the privacy rights of Swedish and non-Swedish citizens as domestic surveillance is governed by a separate act Lagen om elektronisk kommunikation (SFS 2003:389)which is in line with the privacy protections required by General Data Protection Regulations.The 2008:717 does not allow for any appeal with respect to the decisions taken under the Act which jeopardizes the right of individuals to have a legal remedy against the surveillance. In addition to above-mentioned legislations in the given countries, a report published by European Union Agency for Fundamental Rights (FRA) addressing a European Parliament request for in-depth research on the impact of surveillance on fundamental rights found out that there are some lacunas in the EU member states laws, including in terms of a need of oversight of the laws and ensuring transparency with the individuals. Conclusion Considering that the individual EU members states have different national laws regarding surveillance activities which do not always provide adequate protection to its own citizens and also to foreign nationals in certain cases when data is used for national security purposes, it would be rather discriminatory to expect the non-EU countries to amend their data surveillance laws in order to comply with the CJEU’s decision and provide required protection to EU data, if they wish to continue collecting or processing personal data of subjects in the EU. This also creates a huge challenge for individual companies and organisations to tackle the obligation put on them to ensure adequate safeguards in the event of conflict with a third country law in case of EU data flows, which is almost inevitable in most cases. Companies, as per the direction released by most of the Data Protection Authorities (DPAs), will need to wait for proper guidance from them before they can brain storm on implementing the necessary safeguards to deal with this complexity of global data transfers and national surveillance laws. Regardless of the court decision or the national boundaries, it is essential for governments globally to be transparent with their people regarding use of personal data to promote accountability, respect privacy rights and build confidence. However, creating a perfect balance between the need to enhance national security and respecting fundamental human rights will be difficult considering that national security is a sensitive issue for all countries across the globe. One can only hope for mutual agreement between countries to deal with this matter which is the need of the hour for business continuity especially amidst this global pandemic. * Nikita Das is a privacy attorney currently working with Cognizant Technology Solutions in Bangalore, looking into privacy compliances of the company. She is a privacy enthusiast trying to unravel the unique alliance between technology and the basic human right – the right to privacy. [1] C‑311/18, Data Protection Commissioner v. Facebook Ireland Limited, Maximillian Schrems

Posted on August 30, 2020 Authored by Ritwick Shrivastav* Image Source: Mo-Voting.com India is the world’s largest democracy with over 900 million eligible voters. Every few months, a part of the country goes into ‘election mode’. Politicians begin their campaign; public servants assume election duties; and security forces get mobilised across regions. Managing all this is the responsibility of the Election Commission (“EC”). Every five years, the EC faces the challenge of organising the Indian general elections. These elections are the most expensive and time-consuming democratic exercise in the world. The 2019 general election, costed over $7 billion and took 5-6 weeks to complete. The EC had to set up over 1.035 million polling booths to ensure convenient access for all voters. However, despite such a strenuous exercise, over 300 million eligible voters did not vote. The number of these ‘lost votes’ is equivalent to the population of the United States of America. For a participatory democracy like ours, such numbers are abysmal. Addressing the issue of low polling numbers, the EC admitted that many eligible voters could not vote because of being far from their registered voting district.[1] This means that several million interested voters could not vote because of being physically absent from their voting district. In a country with over 450 million migrants[2], not having a remote voting mechanism is akin to taking away the ‘Right to Vote’. In the light of these events, it becomes imperative for the Indian democracy to evaluate its existing voting systems and device an efficient method to enable remote voting. Democracies around the globe are reinventing their election models. There is an increasing shift towards digital elections. To ensure safety and privacy in these elections, countries have resorted to blockchain technology. In this article, the author will discuss how India can also use blockchain technology to enable ‘Vote from home’ elections. The author will also discuss how the EC can easily adopt this technology without significant changes to the existing infrastructure. Finally, the author will discuss the different voting mechanisms adopted by countries in their (blockchain based) election system. Understanding Blockchain and EC’s New Model A blockchain is a decentralised distributed ledger which is transparent, reliable and nearly impossible to hack. It is the technology that underpins Bitcoin. While the jury is still out on the legality of Bitcoin and other cryptocurrencies, blockchain is considered to be the next ground-breaking innovation that could transform governance. Therefore, is it not surprising that the EC has already collaborated with Indian Institute of Technology, Madras to develop a blockchain based system for remote voting. The EC intends to make use of the Aadhaar infrastructure to develop this blockchain model.[3] Considering the common hacks and leaks that malign Aadhaar’s image, this arrangement would surely fail any judicial scrutiny. Notably, this is not the first attempt to link the Aadhaar database with Voter IDs. In 2015, the EC was able to link the cards of over 380 million voters under the National Electoral Roll Purification and Authentication Programme (“NERPAP”). However, due to concerns regarding data privacy, the project was put on hold and has been in cold storage since.[4] In order to see the light of day, this new model needs to first address all data privacy concerns associated with the Aadhaar System. The answer again lies with blockchain technology. Protecting Aadhaar Database with Blockchain Aadhaar is the world’s largest biometric ID system. Naturally, it’s a honey-pot for hackers and extortionists. Over the past few years, Aadhaar system has experienced several hacks and leaks. In 2017, Aadhaar numbers and personal information of over 135 million Indians was leaked online.[5] It is therefore not surprising that technology and policy experts have time and again demanded the use of blockchain technology to protect the Aadhaar database. A blockchain-based Aadhaar ecosystem would also help Unique Identification Authority of India (“UIDAI”) to comply with the data protection and privacy stipulations outlined in the right to privacy judgment. It would allow information to be collected, held and utilized transparently with the consent of the individual. However, given the immensity of the data and required bandwidth, it will be difficult to transfer the entire database onto a blockchain.[6] It will also be financially unviable because of the high infrastructure and operation costs. A better way will be to utilise the existing Aadhaar infrastructure. In a paper titled “Blockchain based Aadhaar Security”[7], the authors suggest installing a layer of blockchain protection over the existing Aadhaar database. They suggest that blocks with original data should have a pointer assigned to them in the central database. The encrypted stored pointer can be decrypted to see the original data node. By this method, the bandwidth required for implementation will be very less as the existing Aadhaar infrastructure would be utilised.[8] This system will protect Aadhaar against hacks and will ensure Aadhaar holders of anonymity and privacy. Once the Aadhaar system is protected with blockchain, the linking of Voter IDs can take place without apprehensions. The linking will enable the EC to verify the voters through Aadhar’s authentication systems and solve identity duplication problems. It will also enable the EC to use biometrics to verify voter identity at the time of polling. However, mere linking of the two IDs will not be enough to enable a vote from home election. The EC will have to develop a blockchain of its own. Election Commission’s Voting Process The EC has already partnered with IIT Madras to design its blockchain. The project is currently in the research and development stage with the aim of developing a prototype in the coming year. The EC intends to have a two-way electronic voting system, in a controlled environment, on white-listed IP devices on dedicated internet lines. The two-way blockchain remote voting process would involve voter identification and authorisation using a multi-layered IT enabled system working on EC’s Electoral Registration Officer Network (“ERO Net”) using biometrics and web cameras. After a voter’s identity is established by the system, a blockchain-enabled personalised e-ballot paper (Smart Contract) will be generated. When the vote is cast (Smart Contract executed), the ballot would be securely encrypted and a blockchain hashtag (#) will be generated. This process will enable remote voting but voters will have to reach a designated venue during a pre-decided period of time to be able to use this facility.[9] This system will only increase the burden on EC during elections. Instead of setting up polling stations with Electronic Voting Machines (EVMs), the EC will now have to set up sophisticated computer systems with high speed internet connections. The EC will also have to acquire new computers, cameras and modems which will burden the exchequer even further. The need of the hour is to have an “anytime-anywhere-any device” voting system. Several countries in the world have developed systems for such ‘vote from home’ elections. While no system can be adopted as is in India, there are a few International systems we could learn from: Estonia: Estonia is a Baltic nation of roughly 1.3 million people. Its system of voting is widely regarded as an ideal model for online voting. The eligible voters get a ‘vote token’ on their IDs and they can send the token to the candidate they vote for. The National Electoral Commission of Estonia counts the vote on their blockchain and the result is declared. The identity of the voter remains anonymous.[10] The elections are inexpensive, fast and safe. Russia: Russia has been giving blockchain technology a big push. The Moscow City Election Commission and Moscow Department of Information Technology (DIT) launched a blockchain based electronic voting system in June 2019. The system was used alongside regular voting systems. After the successful experiment, Russia has decided to roll out blockchain based voting on a national level for the 2021 Presidential elections.[11] Sierra Leone: In March 2018, Sierra Leone became the first country to conduct an entire election over blockchain.[12] It conducted its election with the help of a blockchain voting company named Agora.[13] Anonymised votes/ballots were recorded on Agora’s blockchain which was publicly available for any interested party to review. India can adopt all or some features from these countries to develop its own voting system. Considering the magnitude of voters, it seems unimaginable to conduct an entire general election over blockchain. The EC’s system will have to be tried, tested and scaled before it can be rolled out. Since the technology is new, EC will also have to heavily advertise the voting process. We may also face malfunctions and cyber-attacks. However, every country faces these initial challenges. In fact, in case of the abovementioned Moscow elections, the blockchain voting system malfunctioned soon after going live causing confusion among the voters. [14] There were also multiple failed attempts to hack into the system.[15] It is therefore suggested that the EC starts on a small scale. Experimental exercises in association with universities and colleges can be arranged. Student elections such as Delhi University Student Union elections (where the voters are well read and can provide useful feedback) can be organised over blockchain. The EC can also use blockchain together with traditional voting to conduct a Bye-Election. Voting can be conducted in a phased manner to ease pressure on the blockchain. Even if we start with a hit and trial, we must start soon. Conclusion It is inevitable for the world to move towards digital elections. A suitable legal system has also been set into place. The Government has also acknowledged and allowed One Way Electronically Transmitted Postal Ballot System (ETPBS). This system enables personnel belonging to the armed forces, CRPF etc. to fill up the ballot papers and post them back electronically. During the 2019 Lok Sabha elections, the ETPBS system helped such service voters to participate overwhelmingly in the polls, with the turnout of almost 62 per cent as compared to single digits in earlier elections. A bill to allow proxy voting for overseas Indians was also introduced in the Parliament but lapsed following the dissolution of the 16th Lok Sabha. The COVID-19 pandemic has presented another reason to speed this process. Countries like Hong Kong[16] and New Zealand[17] have already postponed their parliamentary elections citing rise in coronavirus infections. In India, the demands for postponing the 2020 Bihar Assembly Elections are also gaining momentum.[18] As of date, the blockchain technology is the best available technology that can provide end-to-end verifiable and transparent remote voting solution. A vote from home election is now a necessity. Never let a good crisis go to waste – Winston Churchill *Ritwick Shrivastav is a practicing lawyer and a Public Policy analyst. He also works with Members of Parliament to assist them in legislative drafting and policy formation. [1] Working on tech solution for ‘lost votes’, says CEC, Times of India, February 13, 2020. [2] Sushant Singh and Aanchal Magazine, Explained: Indian migrants, across India, The Indian Express, April 29, 2020. [3] Blockchain solution for lost votes: EC working with IIT Chennai, Moneycontrol news, February 13, 2020. [4] Shanti S, EC May Finally Get Its Wish As Govt To Soon Link Aadhaar With Voter ID, Inc42 news, February 19, 2020. [5] Aadhaar Numbers and Personal Details of 135 Million Indians May Have Leaked, Says CIS Report, Outlook India, May 3, 2017. [6] Saikat Basak, How can blockchain help Aadhaar ensure privacy and transparency?, Economic Times, February 22, 2018. [7] Volume 7, Sankaranarayanan P.J and Geogen George, Blockchain Based Aadhaar Security, International Journal of Engineering and Technology, 398 (2018) [8] Sankaranarayanan P.J and Geogen George, supra, 6. [9] Election Commission, IIT Madras join hands to develop new technology for voting, Indian Express, February 16, 2020 [10] Mahina Duggal, Blockchain in Democracy: Moving Towards Blockchain-Powered Voting Systems, Cryptonews, February 21, 2020. [11] Tim Alper, Russian Government Set to Enable Blockchain Voting for 2021 Elections, Cryptonews, July 8, 2020. [12] Rosie Peper, Sierra Leone just became the first country in the world to let its citizens vote using blockchain, Business Insider, March 14, 2018. [13] Agora is a blockchain-based voting ecosystem allowing anyone anywhere to vote online from a digital device in a fully secure, easy and certain way. [14] Stephen O’Neal, Russia’s Blockchain Voting System Malfunctions Soon After Going Live, ,Cointelegraph, June 25, 2020. [15] Hacker Attempts to Disrupt Russia’s Blockchain Voting System, Coindesk, June 29, 2020. [16] Hong Kong postpones elections for a year over virus concerns, BBC news, July 31, 2020. [17] Susannah Cullinane and Samantha Beech, New Zealand Prime Minister Jacinda Ardern delays election over Covid-19, CNN, August 17, 2020. [18] Pratul Sharma, Demand grows for postponement of Bihar elections, The Week, July 11, 2020.

Posted on August 25, 2020 Co-authored by Akshat Agrawal & Manika Dayal* Image Source: CopyrightUser.org Introduction The COVID-19 pandemic has halted the world and has affected almost every aspect of an individual’s livelihood. This has led many academic researchers and pharmaceutical companies relentlessly working towards finding both treatments and vaccines for COVID-19. The need for a solution through innovation presents itself to be extremely pertinent. This article will seek to analyse the importance of Artificial Intelligence (“AI”), specifically Text and Data Mining (“TDM”) tools in combatting the menace of COVID-19 and consequently highlight the importance of AI based tools in facilitating research and pharmaceutical innovations. Further, this article will aim to discuss the various copyright concerns involved in developing and training the AI software, for it to be able to produce an effective output and efficiently support the researchers in developing mechanisms to combat COVID-19, along with the peripheral concerns. The article will further elucidate upon the scope and ambit of research exceptions in copyright, whether they are essential to promote the development and innovation in science, especially during this pandemic for it to be able to promote open and quick collaborative innovation. Finally, the Indian scheme shall be discussed wherein this article shall hint at the various statutory tools within the Indian Copyright Act, 1957 that could effectively be used to ease the legal complexities associated with training the AI software, for it to be effectually employed and used by researchers in the pharmaceutical and other connected industries. Role of AI in Complimenting the R&D Required for a Solution to COVID-19 The Director General of WIPO recently in a statement published on the WIPO website stated that the main challenge currently being faced is the absence of any approved vaccines/ treatments or cures to COVID 19. Further, the policy focus of governments should be on supporting science, innovation and R&D for an efficient development of a scientific solution to the menace that is COVID 19. In light of this, it becomes exceedingly important to recognise the powerful role of AI, i.e. perceptive computing technologies, in addressing the needs of research data required to fight this global pandemic and effective support to medical researchers. In order to understand the conundrum better, we will elucidate upon the possible avenues where AI plays a pertinent role in medical research: Running complex and intricate algorithms by analysing and learning from large and diverse datasets to identify components of a vaccine, by understanding the viral protein structure of COVID-19. Helping research scientists analyse through an exorbitant amount of relevant research papers, and sift through the research papers and publications being published around the world in open access formats. AI technologies like Natural Language Processing (NLP) can help researchers crunch huge amounts of data that would be impossible for humans to process quickly. Further, AI can evaluate and summarize tens and thousands of new research papers on coronavirus to substantiate the researchers work. It is further, pertinent to note that the pace at which research is being published is extremely rapid and therefore, it has become increasingly difficult for scientists and medical researchers to connect the dots and swiftly analyse the various points and contentions raised. For this, Allen Institute of AI recently partnered with several research organisations to produce the COVID 19 Open Research Dataset (CORD-19), a unique resource base with over 40,000 scholarly articles on COVID 19, with continued daily updates. Researchers herein can apply natural language processing algorithms and work on solutions and mechanisms for possibly developing the vaccine. Further fairly new tools like Google’s COVID-19 research explorer, enables users/ researchers to ask questions on its AI supported search engine, which upon analysis of the language terms read with the data sets fed in, returns a list of papers with key passages highlighted. Another similar initiative is a search engine based tool which uses AI to tag papers with keywords, labels and offers filters such as peer review status, source etc. has been developed at Lawrence Berkeley Laboratory, California and is known as COVID Scholar. Essentially functions performed by these AI based tools is to keep up with the results of scientific research, collate and efficiently make critical information accessible to researchers to save them a lot of time and effort. However, AI related developmental methods require large amounts of labelled data to be effective. AI works on clean and enriched datasets which are required to be fed in for the AI software to be able to learn to analyse and filter the critical aspects of the same. Therefore, for it to predict more accurate results and to be trained to parse and extract knowledge out of big datasets, researchers need access to huge sets of data and training tools. Most of this data is IP protected by large research labs and pharmaceutical agencies along with big pharma companies curbing the effective use and development of AI based tools. Most of these datasets are either protected by Copyright or Database protection laws and seeking and negotiating licenses for the same disbands effective access to these essential resources, especially during a public health crisis. Copyright Issues Arising in Training and Employment of Artificial Intelligence Software Intellectual property, more often than not, poses as a major barrier to access essential resources, for innovation and effective results, in appropriate timelines and affordable terms, contrary to legislative intent of most legislations. Specifically, with respect to training and employing the AI systems for a supplementary role in research, large datasets are required which may constitute third party intellectual property, consequently raising copyright concerns. Further, mere public health benefits does not create a per-se exception to potential copyright concerns. The use of data to train and efficiently employ AI technologies is called Text and Data mining (TDM). This has been defined as the use of automated analytical techniques to analyse text and data for patterns, trends and useful information which are used potentially for knowledge discovery and facilitation of research. This is a fundamental technique in generating robust datasets that underpin machine and deep learning and enable the AI to effectively supplement knowledge discovery. TDM occurs in 4 stages: In most of the TDM projects used with AI technology, the data used for mining comes within copyright or database right protection, effectively requiring a license from the owner for access. One of the most common types of text mining is “natural language processing” as discussed above which involves a linguistic analysis to read and interpret text, by feeding large interpretational data sets to the AI system. This helps create effective search engines, however it requires large linguistic and scientific terminology based data, which is often protected by copyrighted databases/ sui-generis database rights. Fair Dealing/ Fair Use Exceptions to Ease Copyright Limitations Associated with the Use of Datasets for AI Development Provisions have been incorporated at the national and international levels to facilitate access when intellectual property is a barrier. Exceptions in relation to copyrighted works to ensure availability of vital data, information and knowledge for the purposes of combatting the virus are provided in various forms in domestic and regional copyright legislations. In some jurisdictions like Japan and UK, the copyright laws have been amended to expressly allow research uses and reproduction of lawfully accessed copyrighted materials to train AI systems (by lawfully accessed, the authors mean the presence of a subscription to the platform/journal for lawful access). A precondition to the same is the intended use being non-consumptive/ non-expressive. For instance, comparison, classification or statistical analysis. In the UK Copyright, Designs and Patents Act, 1988, this exception is stated within Section 29 A, whereas in the Copyright Law of Japan, the corresponding provision is Article 30-4. In the European Copyright Directive, two new provisions have been added in 2019 to deal with the exceptions related to TDM. 1. Article 3 of the EU Copyright Directive provides a strong mandatory exception to reproduction and research organisations in order to carry out text and data mining of content to which they have lawful access for the purpose of “scientific research” and development of AI tools for scientific research. This exception is available to universities, research institutes and other scientific organisations where the research is not-for profit or profits are invested back in research. Further, this provision is applicable notwithstanding any contractual provisions. 2. Article 4 provides a related weaker protection for reproduction of lawfully available material for TDM, with a profit motive. However, an interesting aspect of this provision is that it is narrow in its scope as it provides an opt-out system for the rights holders wherein if the right holder has explicitly reserved their rights, this exception shall not be applicable. Coming to the United States, TDM is covered within the “fair use” doctrine irrespective of its profit motive or not. This aligns with the preamble to the US Copyright Act which states the purpose of copyright to be “the progress of arts and sciences”. The courts, most notably in the Google Books case have allowed fair use for the use of data and reproduction of the same in a searchable database that could be used by scholars and researchers. The court applied the principle of “transformative use”, as the use herein was to provide information about the copyrighted works without providing the public with a substantial substitute of the original, irrespective of it being commercial or not. Another reason why the courts have allowed TDM as a fair use, is it involving a non-expressive use – that is use for analysis of the data to develop knowledge about patterns, trends etc., as against use in an expressive capacity. (Hathi trust case). Coming to the case of India, the AI developers and researchers could use “fair dealing” provisions prescribed in Section 52 of the Indian Copyright Act. Interestingly, Section 52(1)(a)(i) prescribes a fair dealing exception in the case of use of a work for personal or private use, including research work. The access restrictions clearly connote use for the work being limited in a personal capacity (only by those who have access to the article) or for research purposes. Due to the purpose of use being Text and Data Mining – for analysis and research purposes (analyzing trends and knowledge discovery), the only question which comes up is with respect to the fairness of the dealing. As the use/ dealing is in a non-expressive capacity which does not pose a competition or substitute for the original work, the purpose can be said to be transformative, and the effect of the dealing – on the original work- is negligible. Hence, the dealing could also be rendered as fair, fulfilling the requirements of Section 52(1)(a)(i). Finally, as copyright does not subsist in ideas and facts, it is arguable that use of a work for TDM merely involves the use of data/datasets which are outside the ambit of copyright protection themselves. The protection under the Indian law is limited to the representation/ expression as a database, however the data within, could be used. As India is a developing arena for research and the use of AI technology, such TDM exceptions could play an important role in fostering AI technologies and for researchers to avoid copyright concerns especially when the use is concerned with research and supplementing research to develop tools to deal with the Pandemic. An interesting observation herein is that the TDM exception is only available for works which can lawfully be accessed. Due to the ongoing pandemic, many journals have made their content freely accessible to researchers and have in turn made it open access. Even WIPO has notified free access to research related to SARS CoV 2 as well as free access to newspaper articles. This, combined with the TDM exception, shall bring a lot of resources and datasets into easy availability for development of AI technologies and use by researchers without the worry of copyright threats especially for knowledge development and use to combat the impact of COVID 19. *Akshat Agrawal graduated with BA LLB (Hons.) from Jindal Global Law School with a specialisation in IP Policy. He is working as a Judicial Law Clerk at the Delhi High Court with Justice Prathiba M. Singh. He holds a keen interest in IP theory, A2K and Free Culture. Manika Dayal graduated with B.A LL.B (Hons) from Jindal Global Law School with a specialization in Intellectual Property, Data Privacy and Media laws. The opinions expressed herein are those of the contributors in their personal capacity and do not, in any way or manner, reflect the views of the organizations that the contributors are presently associated with, or that have previously employed or retained the contributors.

Image Source: msn.com Posted on August 23, 2020 Authored by Joseph Moses Parambi. On June 30th, 2020, the Supreme Court of the United States (“SCOTUS”) laid down a landmark ruling granting Booking.com BV (Booking.com) trademark registration in United States Patent and Trademark Office v. Booking.com BV[i]. The majority 8-1 decision lays down an unusual precedent that provides registration to a mark based on a generic term. Justice Stephen Breyer wrote the lone dissenting opinion. Legal Context This is the third time in four years that the Supreme Court has found the United States Trademark Office practicing examination guidelines that led to the improper refusal of an applied-for mark. Consequently, the Supreme Court upheld the lower court’s holding that “booking.com” would receive protection due to its quantifiable source-identifying characteristics. Factual Background The United States Patent and Trademark Office (“USPTO”), the appellant, had previously denied registration to “booking.com” claiming the mark was based on a generic term. It refused to register the mark on the ground that terms that do no more than name a product or service would not be eligible for trademark protection since it would deny other providers of the same product or service from appropriating a common term to describe their goods. Booking.com BV, the respondent, sought judicial review of the USPTO decision where the District Court found that “booking.com” would not be considered generic even though its counterpart “booking” may be considered a generic term. The Court of Appeals affirmed the District Court’s opinion and found no error in the lower court’s evaluation of how consumers perceive the mark. The Court of Appeals also rejected the USPTO’s main contention which was to consider a de facto rule that combining a generic term with “.com” would yield a generic composite result. The USPTO’s contention was in line with the SCOTUS’ prior decision in Goodyear’s India Rubber Glove Mfg. Co. v. Rubber Co.[ii] (“Goodyear’s India”) whichlaid down the rule that appending a word such as “Company” or “Inc.” after a generic term could not permit a party to have exclusive rights of the term. This rule is often termed as the “Goodyear principle.” However, the Court of Appeals found that the Goodyear Principle did not apply to the current case and rejected the USPTO’s contention of applying this rule de facto. The USPTO appealed this decision to the SCOTUS which ruled that a term styled as “generic.com” would only be generic if it had such meaning to consumers. The SCOTUS chose to redefine compound generic marks such that a compound mark would turn generic only if the mark, taken as a whole, signified to consumers that it denoted a class of goods and services, and not a single entity. The SCOTUS rejected the USPTO’s contention of applying the de facto rule in consideration of generic marks holding that an unyielding rule that disregards consumer perception was antithetical to the Lanham Act[iii]. Further, the SCOTUS held that due to the very nature of domain registration, a domain could only be held by a single entity and hence, would be able to distinguish the holder’s goods and services from those of its competitors. Justice Breyer’s Dissent Justice Breyer’s dissent is a well-thought out opinion that follows the traditional goal of granting as little protection consistent with encouraging fair trade. His dissent is based on the broad theme found in Matal v. Tam[iv] (“Matal”) decided by the SCOTUS – the purpose of trademark law is to “foster competition” and “support the free flow of commerce”; a theme that the majority decision failed to incorporate in their judgement[v]. Justice Breyer’s dissent is split into two parts. The first part deals with the genericism of the “booking.com” mark and the latter discusses the anticompetitive effects of granting protection to “generic.com” marks. He reiterates well-established principles of trademark law stating that a generic mark is not eligible for protection even if it has become identified with a first user in the minds of the public[vi]. This is based on age-old intellectual property jurisprudence of generic marks; the grant of a monopoly to a single proprietor would prevent competitors from being able to describe their goods as what they are[vii]. Justice Breyer states the Goodyear principle[viii]is sound law as a matter of fact and logic. Under the Goodyear principle, common designations such as “Inc.” and “Company” do not provide the ability to distinguish an entity’s goods and services from a competitor partaking in the business of similar goods and services; ergo, where a compound term is simply the combination of a generic term with a corporate designation, the whole would not necessarily be greater than its parts. Justice Breyer’s dissent deals with the principles discussed above and applies them to the “booking.com” term. Trademark jurisprudence in the United States has generally ignored top-level domains (“.com”, “.us”, “.net”) when analysing likelihood of confusion[ix] [x]. Second-level domains (“Facebook” in facebook.com and “booking” in booking.com) are similarly adjudged[xi] [xii]. Justice Breyer’s dissent discusses the majority opinion of the SCOTUS and how such a decision would impact free trade and competition. He criticises the majority’s fact-specific approach as well as their approach to the District Court’s weighing of consumer perception. The District Court determined that consumers do not use the term “booking.com” in ordinary speech to denote a class of goods and services. Rather, “booking.com” is used to refer to services of a specific service-provider. However, Justice Breyer once again relies on prior well-established trademark jurisprudence and states that literal use is not dispositive[xiii] and hence, this fact-specific approach undertaken by the majority lays down an uncertain evolution of trademark rights. Similarly following from the Goodyear principle, “Booking Inc.” may not be trademarked since it only signifies a booking company; ergo, the result should be the same for “booking.com” which signifies the same trade as “Booking Inc.”, the former being on the internet and the latter being a physical location. Justice Breyer also rejects booking.com’s submission that there is no evidence that consumers refer to booking.com as a class of goods and services. The dissent reads that there would practically never be such evidence available, nor would generic.com terms be found in the dictionary. The second part of Justice Breyer’s dissent deals with the anticompetitive effects of granting registration to “generic.com” marks in the global marketplace; a marketplace slowly evolving from brick-and-mortar stores to ecommerce stores. He notes that owners of short, generic domain names enjoy a multiplicity of advantages irrespective of trademark laws. Generic.com marks are easier to remember, and generic business names may create an impression that it is the most authoritative and trustworthy source of certain goods and services[xiv] [xv]. Generic.com businesses do not enjoy protection due to the goodwill of the business, rather they receive protection due to being fortunate enough to be the first to appropriate valuable online real estate. Justice Breyer also questions the additional competitive benefits that registration confers on owners allowing them to exclude others from using similar domain names. Trademark registration allows the Respondents to prevent competitors from registering marks such as “flight-booking.com”, “bookit.com” and “hotel-booking.com”. Analysis Justice Breyer’s dissent is well-reasoned and questions how the legal principles laid down by the majority could evolve long-term trademark jurisprudence. There is evidence to suggest a rising trademark law rhetoric of providing protection to marks based on public perception. Justice Breyer rightly identified that providing protection to marks based on such perception becomes problematic for the mere fact that evidence of association, no matter how strong, does not negate the generic nature of the term. Leading treatise writer McCarthy also criticises the SCOTUS’ uncanny ability to “discard the predictable and clear line rule of the USPTO” in favour of “a nebulous and unpredictable zone of generic name and top level domain combinations that somehow become protectable marks when accompanied by favourable survey results.”[xvi] The majority opinion lays down two major difficulties. First, it creates a “paper tiger” scenario wherein registration of the mark looks menacing but crumples when hit with the scrutiny of litigation. This creates an oddity: a party undertakes costly litigation to overcome the presumption that the applied-for generic.com mark is not registrable, followed by investing in costly litigation once again to prevent any post-grant opposition to their mark. This difficulty was left open by the SCOTUS and there is currently no precedent as to how such conflicts should be resolved. Second, there is now a Herculean burden upon the USPTO to be able to define the protection granted to generic.com marks. This was rightly identified by Justice Breyer when he stated that competitors would not be able to register marks like “flight-booking.com” due to their textual similarity. Due to the majority opinion, there is currently nothing that stands in the way of automatic trademark eligibility for every generic.com mark. Much of the time, this decision shall now rest on the shoulders of survey evidence just as it did in this case. The SCOTUS has not provided answers to whether protection extends to the whole mark (booking.com) or whether it would also extend to the second-level domain (booking). Though the Respondent claims that they will not restrain competitors from using the term “booking” in their own marks, future generic.com mark owners may prove to be less restrained[xvii]. This ties back to our first difficulty of registration creating paper tigers – though registration looks menacing, what actual benefits does it confer? Due to the domain name system, only a single entity can own “booking.com” at any point in time. The mere fact of owning a domain gives exclusive right to the owner to use the name independent of any trademark registration. Respondents are under no threat of cybersquatters or any other entity being able to appropriate the “booking.com” mark; ergo, trademark registration does not confer any significant benefits unless the Respondents wish to extend their exclusivity beyond the domain name itself. Another flaw we see in the majority opinion is the majority’s weighing of survey evidence. The respondent submitted survey evidence that 74.8% of participants were able to distinguish booking.com as a service provider rather than a class of goods and services. 33% believed that “washingmachine.com” – which does not correspond to a brand – was a service provider. This difference could easily be accounted for by the $5 billion that the Respondent spent on marketing in the year 2018 alone. Survey evidence has evolved into a flawed method of testing consumer perception due to its very weak structure that only tests for consumer association of a term. Survey evidence has limited probative value in this context since large companies may establish such an association through investments in securing public identification. Survey evidence cannot establish the genericism of the mark[xviii] [xix] and therefore, the majority opinion in Booking.com could be considered cursory at best. Heavy investment cannot and should not transform the nature of a term. The majority’s opinion that the Goodyear principle did not apply to the current case once again hints at the court’s inability to evolve with technology in trademark cases. The majority held that only a single entity may occupy a certain domain and hence, consumers can infer a certain mark refers to a certain entity. The majority’s converse opinion is erroneously derived from the principle laid down in Goodyear. The majority used the example of “wine.com” being able to differentiate itself as a service provider however “Wine Inc.” and “Wine Company” would only denote a class of goods. E-commerce sales now account for a whopping 16% of total sales in the United States. Most businesses choose to sell online and hence, “.com” is the new “Inc.” – a fact the majority should have rightfully recognized. Practical Significance The decision in Booking.com sits outside the framework previously established by the SCOTUS in Matal and Goodyear’s India. The majority decision creates opportunities for generic.com domain holders but simultaneously creates uncertainty and poses more questions to the evolution of trademark jurisprudence. The majority opinion could lead to a multiplicity of anticompetitive effects in the United States wherein every good and service is characterized by one seller, for example, flowers.com for flowers, pizza.com for pizza. This is the opposite of the competitive multi-firm marketplace that most economies seek to achieve. Had the Court refused registration to the mark, it would have led to a far cleaner landscape and evolution of trademark rights with regard to generic.com marks. Joseph Moses Parambi graduated with a B.B.A. LL.B (Hons) from Jindal Global Law School with a specialization in Intellectual Property and Technology laws. He is currently working as a Legal Associate with Marlabs Inc., and takes a keen interest in the economic implications of the application of intellectual property. [i] Patent and Trademark Office v. Booking.com B. V., 591 U.S. (2020) [ii] Goodyear’s India Rubber Glove Mfg. Co. v. Rubber Co., 128 U.S. 598 (1888) [iii] Lanham Trade-Mark Act of 1946, 50 Stat. 427 (Jul. 5,1946), codified, as amended, at 15 U.S.C. 1051 et seq. [iv] Matal v. Tam, U.S. (2017) [v] Id. at 4-5 [vi] CES Publishing Corp. v. St. Regis Publications, Inc., 531 F. 2d 11, 13 (CA2 1975) (Friendly, J.) [vii] 1993. Introduction to Trademark Law & Practice. 2nd ed. Geneva: World Intellectual Property Organization, p.21 (“…in view of the absolute need of the trade to be able to use them, they must not be monopolized.”) [viii] Goodyear’s India Rubber Glove Mfg. Co. v. Rubber Co., 128 U.S. 598 (1888) [ix] Brookfield Communications, Inc. v. West Coast Entertainment Corp., 174 F. 3d 1036, 1055 (CA9 1999) [x] Advertise.com v. AOL, LLC, 2010 WL 11507594 (CD Cal.) [xi] 1 McCarthy §7:17.50 [xii] 2 McCarthy §12:39.50 [xiii] H. Marvin Ginn Corp. v. International Assn. of Fire Chiefs, Inc., 782 F. 2d 987, 989–990 (CA Fed. 1986) [xiv] Meystedt, What Is My URL Worth? Placing a Value on Premium Domain Names, 19 Valuation Strategies 10, 12 (2015) [xv] Folsom & Teply, Trademarked Generic Words, 89 Yale L. J. 1323, 1337–1338 (1980) [xvi] 1 McCarthy §7:17.50 [xvii] Advertise.com v. AOL, LLC, 2010 WL 11507594 (CD Cal.) [xviii] Miller Brewing Co. v. Jos. Schlitz Brewing Co., 605 F. 2d 990, 995 (CA7 1979) [xix] In re Hikari Sales USA, Inc., 2019 WL 1453259, *13 (TTAB 2019)

In 2018, the Securities Exchange Board of India (“SEBI”) constructed a panel, headed by T.K. Vishwanathan. The objective of the panel was to recommend changes to the present framework and rules in order to effectively tackle and curb market frauds and insider trading. SEBI had requested the Centre for permission to intercept phone calls, since the US Securities Exchange Commission is also vested with the same. However, the Centre has rejected SEBI’s request to be allowed the powers to tap phone calls of those individuals who are involved in insider trading. Access to such details shall be granted in the rarest of cases of which involve threats to national security, terror financing, and money laundering. This kind of power is sparingly allowed as the last resort because they conflict with citizen’s fundamental rights to privacy under Article 21 of the Constitution of India. Besides, if it gives such powers to one government authority, soon, several other authorities will be demanding the same. This is a welcome step as the Centre has taken cognizance and upheld citizen’s fundamental rights. Reported by Tanya Garg, Senior Editor

Image Source: WIPO Pressroom On 30 July 2020, World Intellectual Property Organization (“WIPO”) in a press release announced an advancement in its partnership with the International Confederation of Societies of Authors and Composers (“CISAC”). This new partnership echoes an agreement signed earlier this year on metadata between WIPO and SUISA, the Swiss authors’ Collective Management Organizations (“CMOs”) and a CISAC member. Under that agreement, WIPO Connect user societies gain access to a global platform that identifies authors, composers and publishers. The purpose of WIPO’s agreement with CISAC is to make CISAC’s CIS-Net, an international repertoire database, available to CMOs, especially in developing countries. The aim object of the new partnership is to provide access to an enhanced platform and facilitate greater participation in CISAC’s information systems network. This initiative is extremely beneficial to CMOs who represent creators in developing countries by: Effectively aiding CMOs manage their repertoire; Facilitating information and data exchange with other CMOs beyond the territorial borders; Improving international coverage; and Boosting the earnings of creators and publishers who have their rights managed by those CMOs. The WIPO-CISAC agreement, will enable WIPO Connect users to share their domestic repertoires on CIS-Net. This will assist in accurately identifying the repository of authors and composers, paving way for international recognition and remuneration for their creations. The initiative will help support societies and budding creators around the world. Additionally, WIPO Connect provides immense potential for growth, as it provides CMOs around the world, to showcase their repertoire on one consolidated platform. Reported by Tanya Garg, Senior Editor [ORIGINALLY PUBLISHED ON AUGUST 14, 2020]

Image Source: 9to5google.com This week has found Apple in the middle of some contentious disputes as reported here and here. However, the heat continues for Apple as Epic Games filed an antitrust law suit against Google and Apple for removal of the popular gaming application ‘Fortnite’ as Epic includes a direct payment method instead of paying through ‘app stores’ by Google and Apple. Apple is already in the middle of a similar antitrust dispute with Spotify over its mandatory purchase system built in the app store itself and charging 30% commission on the payment transactions. Epic Games has also filed for an injunctive relief before the United States District Court, Northern California against Google LLC for abusing its monopoly power in the merchant market for mobile operating systems and the Android mobile app distribution market. Epic, in this suit for injunction, states “Epic likewise does not seek a side deal or favorable treatment from Google for itself. Instead, Epic seeks injunctive relief that would deliver Google’s broken promise: an open, competitive Android ecosystem for all users and industry participants. Such injunctive relief is sorely needed“. Epic contends that, by having a monopoly in the Android mobile app distribution market, Google via its ‘Google Play Store’ installs itself as an “unavoidable middleman for app developers who wish to reach Android users and vice versa” and “uses this monopoly power to impose a tax that siphons monopoly profits for itself every time an app developer transacts with a consumer for the sale of an app or in-app digital content. And Google further siphons off all user data exchanged in such transactions, to benefit its own app designs and advertising business“. Epic contends that by removing its gaming app ‘Fortnite’ (which had millions of users) because of a direct payment method, Apple and Google are abusing their position as this “unavoidable middleman” and exploiting app developers to mandatorily adhere to their arbitrary guidelines. This practice, also known as ‘bundling’, amounts to anti-competitive conduct as Epic contends. For a detailed legal analysis of bundling practice by app stores, read our earlier post here. With regard to bundling, the suit states: “Google bundles the Google Play Store with a set of other Google services that Android OEMs must have on their devices (such as Gmail, Google Search, Google Maps, and YouTube) and conditions the licensing of those services on an OEM’s agreement to pre-install the Google Play Store and to prominently display it. Google then interferes with OEMs’ ability to make third-party app stores or apps available on the devices they make. These restrictions effectively foreclose competing app stores—and even single apps—from what could be a primary distribution channel“. The suit filed by Epic prays for an injunction prohibiting Google’s anti-competitive and unfair conduct and mandating that Google take all necessary steps to cease such conduct and to restore competition; and to declare that such contractual restraints by Apple and Google are unlawful and anti-competitive. Reported by Tanya Varshney, Chief Editor

mage Source: Instagram @prepearapp It seems like Apple is keeping its third eye occupied over monitoring newly registered fruit logos in the market. This fact comes to light after Apple alleges that a small company named “Prepear” has a similar ‘pear logo’ and “consists of a minimalistic fruit design with a right-angled leaf, which readily calls to mind Apple’s famous Apple Logo and creates a similar commercial impression“. Prepear is a recipe plan, grocery list, and meal organizer mobile application on iOS and Android. The app’s maker has shared an Instagram post stating that a “trillion dollar company has alleged that our cartooned pear logo is ‘too close’ to their Apple logo and supposedly harms their Apple brand”. Prepear applied for its pear logo under US Serial No. 87315348 on January 26, 2017. Apple, in its lengthy filing with the United States Patent and Trademark Office, has alleged a case of brand confusion and dilution caused by “blurring” and has relied upon several of its apple formative logos. Ms. Natalie Monson, the CEO of Prepear, further expressed her concern of being burdened with enormous amount of money in order to fight this suit. The interesting thing that grips us is that Prepear is one of the many companies that Apple has targeted in its quest to make apple the only fruit logo in the market. It has come to light that all the other companies that have been targeted by Apple have either lost money over years of fighting a suit or do not have enough resources to fight in the first place and have abandoned their mark. Prepear takes up this battle as a moral obligation. Ms. Monson commented “We are defending ourselves against Apple not only to keep our logo, but to send a message to big tech companies that bullying small businesses has consequences”. Prepear has also filed its answer to the Notice of Opposition by Apple on May 4, 2020 and has largely denied Apple’s allegations without making any arguments on merit, as such. We question ourselves that does a trillion dollar company feel threatened by a small business? Or is it a quest to monopolize the niche set of fruit logos? Even bigger question is, can Apple even claim a exclusive rights in fruit mark?