Trademark vs Brand – Significance in the modern markets

By Bhanita Das, Flywork.io Team, Flywork.io.

The significance of a Brand name and a trademark has increased manifolds in the current highly competitive markets, nationally and internationally. Let’s look at a comparative overview of both.

In our day-to-day life we often hear the term Trademark and Brand, both seem to be similar but they have their significant distinction. Brand and Trademark both are valuable assets of a company.

MEANING OF BRAND

Brand is a name that is basically given by the manufacturer to the product or services they produce from its own of their specific company. For example: Puma, Biba, Apple, ZARA etc. It helps to create its identity and helps to make a strong market among the people. One of the best examples is the COLGATE, people are so used to this brand that they forgot that Colgate is a brand instead of toothpaste; often heard people saying other brand toothpaste also to be Colgate.

MEANING OF TRADEMARK

Trademark is basically a symbol or word which is legally registered to use as a representative of a company or product. In simple words, we can say it is a symbol that denotes a specific product and also legally differentiates from other products. The symbol should be unique in nature. It is a type of intellectual property consisting of design, signs, words, or expressions.

Both the term sounds to be similar in nature but there are some differentiations between them. So let’s have a look at it. 

SIGNIFICANCE OF BRAND 

Brand helps the buyer to identify the product which they like and dislike.

Brand helps to identify the marketer as well as helps in reducing the time needed for purchasing the product and services.

For a seller, branding helps to reduce price comparison and helps the firm to introduce a new product.

It helps to facilitate promotion of the goods and services.

SIGNIFICANCE OF TRADEMARK

Trademark is important for a startup for its security, by trademarking a company can secure its product and services being used by another company.

Trademark is permanent which needs to be renewed periodically.

Trademark is a company’s greatest asset that acts as a catalyst for increasing the value of a startup.

DIFFERENCE BETWEEN TRADEMARK & BRAND

1.     A legal brand is not a legal name of a company, it is just a name selected by the company but a trademark is legally bound to represent a business by its services or goods.

2.     Not all brands are trademarks but all trademarks are brands.

3.     A brand consists of several elements which include image, character identity, personality, essence, culture reputation; and these combines to define the value of a brand                  whereas a  trademark is used to protect a various aspect of a brand such as Brand name, Signatures, Color Schemes, Packaging, Unique labeling etc.

4.     Brand name is associated with culture, personality, vision, and reputation whereas a trademark is associated with the description, packaging, color schemes.

5.     Brand can only be protected to state-level but a trademark protects the company’s product identity by establishing that the mark has not been used before.

6.     Brand can be created or named by any manufacturer but a trademark can only be used after it is registered.

7.     Brand can be used by different producers & sellers but trademarks can only be used by the producer who has got it registered.

8.     The fundamental concept of the brand is that it is the easy way to remember the product, whereas the trademark is a source of origin of any product or service.

CONCLUSION

Thus, the above-mentioned terms i.e. Brand and Trademark both are valuable assets of a company. Although both the terms sometimes act as a synonym yet they are very different from each other. A brand is a name that relates to products and services offered by a company whereas a Trademark is a legally registered trade or brand name or logo or slogan that basically identifies a company to its product or services. A good brand helps in suggesting the product benefits and its usage as well as the trademark gives us the right to use our business name nationwide in connection and also allows us to file a suit in case of a dispute.

 

Let the qualified curated professionals at Flywork.io assist you to resolve any legal and allied issues. For more details visit us at Flywork.io.

 

Registration and Cost of Trademark in India

By Achyutha Bharadwaj,  Flywork.io Team, Flywork.io.

Trademark is one of the commonly used IPs by businesses around the world. Here is a brief overview of the registration of a trademark in India and its cost.

Trademark is essentially a mark capable of being represented graphically and capable of distinguishing the goods or services of one person from those of others. In India, registration of trademarks is not compulsory. As regards unregistered trademarks, some aspects are governed by the Act while others are still based on common law. Whereas, in respect of a trademark registered under the provisions of the Act certain statutory rights have been conferred on the registered proprietor which enables them to sue for the infringement of the trademark.

Registration of a trademark

Following are some of the key points pertaining to the registration of a trademark in India:

  • Section 25 of the Act states that the registration of a trademark shall be for a period of 10 years, but maybe renewed from time to time. The renewal shall be for a period of 10 years from the date of expiration of the original registration or of the last renewal of registration.
  • As per Section 18 of the Trade Marks Act, 1999, any person claiming to be the proprietor of a trademark used or proposed to be used by him shall apply in writing to the Registrar for the registration of his trademark.
  • A single application may be made for the registration of a trademark for forty-five different classes of goods and services. The proposed mark must be novel and original in nature, it must belong to a particular class specified in the Fourth Schedule of the Trade Marks Rules, 2002.
  • It must be ensured that the mark chosen has not been used before, i.e., there must not be any similar names or duplicates. One can use the website,  https://ipindiaonline.gov.in/tmrpublicsearch/frmmain.aspx# to make the search and find out whether the mark is one of a kind.
  • Every application shall be filed in the office of the Trade Marks Registry, or Trademark Registrar Office in India, along with the registration fees and legal documents. The Office shall verify the originality and issue the certificate of trademark registration as it sees fit, to the owner. 
  • Trade Marks Act provides for absolute grounds for refusal of registration and relative grounds for refusal. Sections 9 and 11 of the Act, which forbids registration of certain trademarks, apply to trademarks that otherwise would have been registrable.

Cost of Registration 

The fees, as mentioned under Rule 10 of the Trade Marks Rules, 2017, maybe paid either electronically, in cash, or through a money order. The First Schedule of the 2017 Rules mentions the cost of filing for a trademark in India. The application of a trademark costs 4500 INR in case of online filing (e-filing) for Startups, Individuals, and SMEs, while it is 9000 INR for others, whereas physical filing is 5000 INR and 10000 INR respectively. It is to be noted that the above-mentioned charges are over and above the professional charges involved in the process of registration.

Let the qualified curated professionals at Flywork.io assist you to resolve any legal and allied issues. For more details visit us at Flywork.io.

 

ARNAB GOSWAMI “NATION WANTS TO KNOW CONTROVERSY”-DOES TIMES NOW HAVE COPYRIGHT OVER THE PHRASE?

“The nation wants to know”- this innocuous sounding sentence has generated a legal tangle between Arnab Goswami and his erstwhile employers- The Times Group , with the latter claiming copyright over this issues. So, who does the existing law favour?

 

There are two essential questions that crop up-

1-            Can a phrase be copyrighted?

2-            Who holds copyrightability over such titles/phrases created over course of employment?

 

 

 

Under Section 13 (1) of The Copyright Act, 1957, “original” literary, dramatic, musical and artistic works, cinematograph films and sound recordings are to be protected from unauthorized uses. Copyright laws, unlike patent laws, protect the expression of an idea and not an idea itself.

 

As seen in the cases of Krishika Lulla V Shyam Vithal Rao Devkatta (2015) 43 SCD 64, for any title or phrase, it has to be “original” to qualify as a literary work. Mere use of common words does not qualify for copyright protection, until it is something that did not exist before, i.e. something not in public domain before. In this case, it is very clear that the phrase did not exist before- Arnab Goswami developed the phrase.

Citing the “de minimis” threshold for copyrightability- as referred to in the case of Pepsi Company V   Hindustan Coca Cola 2003 (27) PTC 305 Del- the court will look out for at least some bare minimum level of intellectual labour and originality. Thus, seemingly, precedent and historicity may allow the phrase to be copyrighted- thus answering the first question.

 

 

However, who holds the copyrights over the phrase?  Under Section 17 (a) of the Copyright Act, 1957 that any literary, dramatic or artistic work made by an author in the course of employment, will make the copyright relating to publication of the work in any newspaper, magazine or similar periodical, or to the reproduction of the work for the purpose of its being so published subsist with the employer.

 

However, as seen in the case of VT Thomas V Malyalam Manorama, AIR 1989, Ker 49, the court said that all artistic works made by an author, as an employee and in the course of employment, under Section 17 (c) of the Copyright Act, 1957, pass onto the employer, except in circumstances like termination of employment. But, in that very case, the court found that the characters used by VT Thomas in his cartoon strip , had been created by him even before he joined Malyalam Manorama, thus making him and not the magazine, i.e. his employer, the author of the characters which had been in existence even before his employment with Malyalam Manorama.

 

Thus, VT Thomas could hold the copyright over the characters and come up with new cartoon strips. But, older cartoon strips made by VT Thomas  consisting of the same characters while in Malyalam Manorama’s service, would be under the copyright protection of the magazine as they were in his erstwhile “course of employment”. 

However, in this case, seemingly Arnab Goswami created the catch-phrase while being an employee of Times Now and not before-hand. Therefore, if there is no agreement to the contrary, Times Now and not Arnab Goswami will be held to be the owners of the copyright of this catchphrase.

 

 

IMAGE SOURCE- http://indianexpress.com/article/india/arnab-goswami-believes-republic-will-change-the-perspective-of-journalism/

How To Register Trademarks in India under the new 2017 Rules

Trademark Registration- The only safeguard to protect your brand

 What is Trademark Registration?

Trademark is a visual mark, which may be a word, name, device, label, numerals or slogan, used by a business to distinguish its goods or services from the products or services of one company from another. A registered trademark is an intangible asset or intellectual property for a business and is used to protect the company’s brand by restricting other people from using the same. It is always advised to get trademark registration because it will protect your brand against those who might initiate using identical or similar marks.

Benefits of getting your Trademark registered

  • Prevent a competitor from registering the same brand before you and inhibiting you from using it. This would entitle the other party in issuing a claim for damages against you for using their registered trademark.
  • Prevent a counterfeiter from using your mark. Trademark registration is the quickest way to obtain preliminary injunctions from the courts, and recover damages later on.
  • A trademark is an asset that has monetary value. It can be bought, sold, assigned or licensed and you can demand and earn royalties for the same.
  • Will facilitate consumers to identify your goods and services with the brand name and create a brand identity.

Who can apply for trademark?

Any Individual Proprietor, start-ups, micro, small or medium enterprise, partnership, LLP, Company, Trust, NGO, even Govt. agency can apply for Trademark.

How to apply for Trademark Registration?

Firstly, we need to check if your trademark is available. For that, we need to conduct a trademark search for you. Trademark search is done to check if the name to be registered is already taken by others or is closely similar to existing trademarks of the same class in trademark database.

Even if your trademark brand name is taken, you can prepare a Logo Composite Mark by combining your logo and your name, and apply as one. This is a common strategy used to apply for a trademark, if another trade name of the same name or closely similar to it, is already taken.

Documents Required:

  1. Power of Attorney, authorizing our trademark attorney for registering your trademark
  2. MSME certificate if yours is a micro, small or medium enterprise
  3. Start up registration certificate, if you are a start up

Note: If you do not have the MSME or the start up certificate that does not mean that you cannot get your trademark registered. Kindly, contact us to know more.

How it works:

We shall take only 24 hours to file your trademark application, once we are in possession of the necessary documents.

Once the application has been made, almost instantly you get a confirmation of the application and you can start using the TM symbol next to your trademark.

The confirmation is done by the Government, as almost instantly they furnish the authorization letter. After the application, it may take around 8-24 months to get the registration certificate, which will be inclusive of the time of objections and oppositions. Once it gets registered, you can then use the ® symbol next to your name.

We shall be charging Rs. 1799/- + Government fee, per class application. The government fee for start ups, SME’s and individual proprietors shall be Rs. 4500/- and for companies it is Rs. 9000/- per class application.

 

 

Author: Anuradha Hazra

My Email Account was Hacked!

My email account was hacked. Can I take legal action against the hacker?

 

If you ask me what one of my worst fears is today, I would say it is “this username and password does not match.” Every time I misspell my password I have this latent fear that my account has been hacked. We have all had friends posting on Facebook saying that their account has been hacked and the “hacker” has been posting things (often objectionable) from their profile.

 

With everyone realising the power of the Internet it has become nothing less than a second identity, and when this is stolen it is no less than theft. At times the email accounts get hacked by viruses and this is generic without any specific reason, for instance, just by clicking on a link a website starts posting on your behalf. These cases are of a less serious nature and a mere changing of passwords is enough. The real problem begins when the account is hacked by someone who does so with a mala fide intention, be it revenge, hatred or sadistic pleasure. It gets even more serious when the accounts of public figures get hacked and their confidential information is leaked or worse the hackers post on their behalf to the multitude of fans that take their word as gospel.

 

Now, how does an account get hacked? There are more ways than one to hack into an account, be it an email account or a social networking account. The first and the obvious would be, when one divulges his or her password to another person, this usually is one of the weapons people use for revenge. Forgetting to log out from public computers is another big factor. The more technologically based processes of hacking are that of Phising, Cookie Hijacking and Keylogging. Phishing is, when a person is made to provide information online about oneself (name, address, passwords, bank details etc.) on the faith that the information has been sought by a valid website, where in reality it is a fake one created in order to use the information provided, for identity theft. Cookie Hijacking is the process of using the user data stored in someone’s computer to get information about their online accounts. Keylogging, is a more sophisticated means of hacking, where the hacker with the use of certain software and hardware can know your passwords by the keys you type on your computer.

 

I got all this information from a not so difficult research, and there were even websites that showed how to hack. Hacking is much easier and simpler than it seems to be, and the internet provides all the help that you need. This is the reason that laws need to have a deterrent effect on the practice of hacking.

 

If you start to think that this post will just advice you to keep your password protected, then you are mistaken, because the Information Technology (IT) Act of 2000 does provide legal remedies to sue a hacker.

 

Section 66 of the Information Technology Act deals with the offence of ‘hacking with a computer system’. It starts with ‘whoever with the intention to cause or knowing that is likely to cause’, showing that mens rea is needed in order for this to be an offence .The act is of causing loss and damage wrongfully, to people in general or to a specific person in particular by altering any information without the person’s consent or knowledge .The accesses to the persons account must be secured by the dishonest means and should cause some serious injury to the victim. Sub-section (2) states that the punishment would be imprisonment of up to three years or a punitive fine of up to two lacks and or both. This shows that the Indian courts do take the crime of hacking very seriously and the harsh punishment is almost equivalent to theft.

 

       On similar lines Section 66C of the Act deals with the Punishment for identity theft. According to this section the dishonest use of an electronic signature[i] or password could result in imprisonment of either description for a term, which may extend to 3 years and fined up to 1lakh rupees.

 

On the question of where to file a complaint: most states have their cybercrime cell websites, where you can file a compliant, with the required documents. A simple Google search can help you to locate the contact details of the correct cyber crime cell that is designated for your jurisdiction.

 

If you think that the Indian legal system has not woken up to cyber crime then that opinion should be changed. The question is how effective is the crime control mechanism. There are laws, but is the police-force deft enough to combat terrorists who are up-to-date in cyber crime warfare? Can these same provisions apply to criminals that infiltrate government security systems and cause grave danger to the country?  With most of the classified data being processed online, the cyber cell has to be more alert and cautious in order to combat this new threat. Cyber crime is not just related to hacked Facebook accounts it goes much deeper and to graver incidents which can have far reaching consequences for an individual person or a nation as a whole. As for people like you and me we should keep our friends close and our online accounts closer.

 

 

 

[i] An electronic signature is something that binds the document sent to the person who sent it. An electronic signature can be anything from one’s name typed out or a virtual copy of one’s own signature.

My email account was hacked. Can I take legal action against the hacker?

 

If you ask me what one of my worst fears is today, I would say it is “this username and password does not match.” Every time I misspell my password I have this latent fear that my account has been hacked. We have all had friends posting on Facebook saying that their account has been hacked and the “hacker” has been posting things (often objectionable) from their profile.

 

With everyone realising the power of the Internet it has become nothing less than a second identity, and when this is stolen it is no less than theft. At times the email accounts get hacked by viruses and this is generic without any specific reason, for instance, just by clicking on a link a website starts posting on your behalf. These cases are of a less serious nature and a mere changing of passwords is enough. The real problem begins when the account is hacked by someone who does so with a mala fide intention, be it revenge, hatred or sadistic pleasure. It gets even more serious when the accounts of public figures get hacked and their confidential information is leaked or worse the hackers post on their behalf to the multitude of fans that take their word as gospel.

 

Now, how does an account get hacked? There are more ways than one to hack into an account, be it an email account or a social networking account. The first and the obvious would be, when one divulges his or her password to another person, this usually is one of the weapons people use for revenge. Forgetting to log out from public computers is another big factor. The more technologically based processes of hacking are that of Phising, Cookie Hijacking and Keylogging. Phishing is, when a person is made to provide information online about oneself (name, address, passwords, bank details etc.) on the faith that the information has been sought by a valid website, where in reality it is a fake one created in order to use the information provided, for identity theft. Cookie Hijacking is the process of using the user data stored in someone’s computer to get information about their online accounts. Keylogging, is a more sophisticated means of hacking, where the hacker with the use of certain software and hardware can know your passwords by the keys you type on your computer.

 

I got all this information from a not so difficult research, and there were even websites that showed how to hack. Hacking is much easier and simpler than it seems to be, and the internet provides all the help that you need. This is the reason that laws need to have a deterrent effect on the practice of hacking.

 

If you start to think that this post will just advice you to keep your password protected, then you are mistaken, because the Information Technology (IT) Act of 2000 does provide legal remedies to sue a hacker.

 

Section 66 of the Information Technology Act deals with the offence of ‘hacking with a computer system’. It starts with ‘whoever with the intention to cause or knowing that is likely to cause’, showing that mens rea is needed in order for this to be an offence .The act is of causing loss and damage wrongfully, to people in general or to a specific person in particular by altering any information without the person’s consent or knowledge .The accesses to the persons account must be secured by the dishonest means and should cause some serious injury to the victim. Sub-section (2) states that the punishment would be imprisonment of up to three years or a punitive fine of up to two lacks and or both. This shows that the Indian courts do take the crime of hacking very seriously and the harsh punishment is almost equivalent to theft.

 

       On similar lines Section 66C of the Act deals with the Punishment for identity theft. According to this section the dishonest use of an electronic signature[i] or password could result in imprisonment of either description for a term, which may extend to 3 years and fined up to 1lakh rupees.

 

On the question of where to file a complaint: most states have their cybercrime cell websites, where you can file a compliant, with the required documents. A simple Google search can help you to locate the contact details of the correct cyber crime cell that is designated for your jurisdiction.

 

If you think that the Indian legal system has not woken up to cyber crime then that opinion should be changed. The question is how effective is the crime control mechanism. There are laws, but is the police-force deft enough to combat terrorists who are up-to-date in cyber crime warfare? Can these same provisions apply to criminals that infiltrate government security systems and cause grave danger to the country?  With most of the classified data being processed online, the cyber cell has to be more alert and cautious in order to combat this new threat. Cyber crime is not just related to hacked Facebook accounts it goes much deeper and to graver incidents which can have far reaching consequences for an individual person or a nation as a whole. As for people like you and me we should keep our friends close and our online accounts closer.

 

 

 

[i] An electronic signature is something that binds the document sent to the person who sent it. An electronic signature can be anything from one’s name typed out or a virtual copy of one’s own signature.

Law of Evidence in India

Evidence is the material on the basis of which the Court can decide the case. Such evidence must be produced before the Court so that it can establish or disprove the point of contention between the parties. The Law of evidence is a very crucial piece of legislation which helps and guides the court in arriving at a conclusion with regard to the existence or non-existence of facts. The rules of evidence are necessary to bring out the truth in every case and the Court should stick to such rules. Basically, the rules of evidence are required to draw a line between relevant and irrelevant facts. There will be great uncertainty with regard to relevant matters, if the court started depending upon the discretion of the Judge in such matters in every case.

In contrast to the substantive laws, which deal with rights and liabilities, law of evidence is a procedural law which provides rules with regard to introduction of evidence to support the case and covers the fundamental principles of proof of facts, its type, quality and quantum etc in a legal proceeding. The Law of evidence is said to be the law of the forum or the lex fori.

The concept of burden of proof is also essential in the law of evidence. The concept is differently applied in civil and criminal cases. Burden of proof broadly means that whoever wants the Court to give a judgement as to any right or liability which is dependent on certain facts must prove existence of such facts. When a person is bound to prove certain existence of facts, it is said that “the burden of proof lies on that person”.

For deciding a civil case, preponderance of probability is sufficient. Preponderance of probability means existence of a greater weight of evidence which is valuable to determine the offence and sufficient enough to incline a fair and impartial mind to one side of the issue. The Judge generally takes into consideration that evidence which is persuasive and outweighs the other side. On the other hand in a criminal case, the burden of proof is on the prosecution which should be proven beyond reasonable doubt. The highest standard of proof which must be met in a trial court is that of beyond reasonable doubt. This means that the judge has no doubt of the defendant’s guilt.

Section 3 of The Indian Evidence Act, 1872 defines oral evidence and documentary evidence. The Act says that all those documents which are presented in the court for inspection are documentary evidence.

 Section 60 of the Act provides for the recording of oral evidence. The most fundamental principle of oral evidence is that it must be direct. All facts except the contents of documents or electronic records may be proved by oral evidence.

Evidence can also be classified into primary and secondary evidence. Primary evidence means that the document itself is produced for inspection. It is the best form of evidence. The evidence which is produced in the absence of primary evidence is known as secondary evidence. Secondary evidence is not admissible unless the primary evidence is proved to be lost or destroyed. Existence of facts needs to be proved by primary or secondary evidence, if there is no such evidence then the document cannot be said to be proved.

Primary evidence speaks for itself and it does not need corroboration. In case of secondary evidence, supplementary evidence needs to be provided so as to strengthen and confirm existence of facts. The Supreme Court has given a vivid description of corroborative evidence in the case of Rameshwar v/s State of Rajasthan (AIR 1952 SC 54). Corroborative evidence refers to an additional evidence from an independent source  which connects the accused with the crime and confirms/substantiates the complainant’s testimony. The corroboration need not be direct evidence.

Direct evidence of a fact means which can be perceived by the senses and it is always primary in nature. It is the strongest form of evidence. On the other hand, hearsay evidence is no evidence.

Hearsay evidence is that evidence which is based on information given by a third person. Hearsay evidence is inadmissible in Court because information given by a third person cannot be trusted upon. In the case of Saktar Singh v/s State of Haryana (AIR 2004 SC 2570), The Supreme Court held that hearsay evidence means the statement of a witness not based on his personal knowledge but on what he heard from others and such evidence is not admissible.

However, there are few exceptionional circumstances under which hearsay evidence is admissible. Statement of a person may be proved by a witness if the fact stated by such person surrounds the relevant facts. This is called doctrine of res-gestae (section 6). An admission of liability or a confession of guilt which is outside the Court can be proved by the testimony of the person to whom such confession was made. Statement in public documents, such as official books and registers, Acts of Parliament are not needed to be proved by the draftsman of such document. Evidence given by a witness in proceeding can be used in a subsequent proceeding between the same parties, provided that, the witness has died or is unavailable for some other reason. Hearsay evidence is also admissible in case of dying declaration. Statement of a dead person becomes relevant when it relates to his cause of death. Expert evidence of a third person is required when the Court has to form an opinion about some foreign law, science, art, and identification of handwriting or hand impression. An expert must have special training and experience on the subject matter upon which his opinion is asked for.

Evidence needs to be proved before the court admits such documents. Once the evidence is admitted, it cannot be further challenged. The general notion is that, any dispute regarding the admissibility of any document should be made by the opposite party at the trial level only. In contrast, there are various landmark judgments where admissibility of evidence has been challenged at an appellate level. In the case of R.V.E Venkatachala Gounder v/s Arulmigu Viswesaraswami and V.P. Temple and Anr(2003 8 SCC 752), the admissibility of document was challenged at the appellate level. As per the case, the objection as to admissibility of evidence can be classified in two ways – (i) an objection that, the document which is to be proved was inadmissible; and (ii) an objection to the insufficient mode of proof of that document. In the first case, even if a document has been marked as 'an exhibit', an objection as to its admissibility can be raised even at a later stage or even in appeal or revision. In the second case, when the objection is regarding mode of proof of the document, it should be raised before the evidence is admitted. Once a document is admitted, objection to its mode of proof can’t be raised at a subsequent stage. It is fair play rule.

The Indian evidence Act, 1872 is dynamic in nature and has evolved with time.  Two of the recent developments in the Act came with the Information Technology Act, 2000 and Criminal Law (Amendment) Act, 2013.

 The Information Technology Act, 2000 broadened the definition of “evidence” by substituting the words "all documents produced for the inspection of the Court", with “all document including electronic records produced for the inspection of the Court". After section 65, sections 65A & 65B were inserted. Section 65A has special provisions as to evidence relating to electronic records such as telephone conversation, CCTV footage, computer output etc. and section 65B deals with the admissibility of such electronic records. The Information Technology Act basically enhanced the Evidence Act by elaborating the scope of evidence (electronic records, digital signature etc.)

The most recent development in Evidence Act was in 2013 after the infamous Delhi rape case. Section 53A was inserted which says that evidence of character of the victim or any person with prior sexual experience is not relevant on the issue of consent or the quality of consent . Quality of consent means likelihood or probability of the victim to give consent. It is a scale of character where a woman is judged based on her sexual experience. If the woman is a virgin then it is very unlikely of her to give consent and as it is often generalized, women with prior sexual experience with different partners are more likely to give consent to any subsequent sexual act. Section 114A when the sexual intercourse of the victim is proved and the question is whether the victim consented or not, if she states in her statement that she did not consent, the court shall presume that she did not consent.  The Amendment to section 146 made it clear that it is not permissible to introduce evidence or put questions in the cross examination of the victim as to her immoral character or her prior sexual experience for proving consent or quality of consent.

The procedural laws are as important as the substantive laws. Sometimes simple procedures are neglected which cause problem in the later stages of the trial or also in the appellate stage. Small loopholes can change the entire scenario of the case. In conclusion, procedural law is required for carving the path for proper functioning of the substantive laws. The law of evidence establishes a working structure for the courts from the grass root level.  In some cases it is just a set of technical hurdles to buy time for the parties and delay justice but these laws are framed for the sole purpose of filtering out the truth and serving justice to the people of the country.

 

The Devil Copies Prada!

By Ashwini Tallur, National Law University Jodhpur

The legal regime protecting intellectual property has helped foster innovation in many industries. However, in an ever changing Industry such as fashion, does it make sense to have a strict regime? This blog attempts to explain the rationale behind iPR, why the Fashion Industry doesn't have one, and takes a look at the pros and cons of a strict protection regime in this industry.

 

 

Rationale behind IPR

“Intellectual property” (IP) refers to creations of the mind: inventions; literary and artistic works; designs; and symbols, names and images used in commerce. IP is protected in law through patents, copyright and trademarks, which enable people to earn recognition or financial benefit from what they invent or create. [i]

The traditional argument for strong IP protection is that any piece of work is difficult to create but easy to copy. Without the presence of a strict IP regime, it is argued, “copy cats” will free-ride on the efforts of creators.  And without IP rights, copying will stifle and discourage innovation. [ii]

As Pranjal Shirwaikar puts it: IP is a monopoly right that grants to its owner the right to exclusively enjoy the rights and benefits granted. This grant of monopoly right coupled with the willingness to invest stands as an incentive for innovation. Thus, it is presumed that the grant of IPR would promote innovation and development.  [iii]

 

Fashion and IPR

However, there are industries that produce a huge variety of creative goods without strong IP protection, Fashion being one. In the months leading up to the wedding of Prince William and Catherine Middleton, the future Duke and Duchess of Cambridge kept Catherine‘s gown a secret. But as soon as she stepped out to reveal Sarah Burton’s Alexander McQueen creation to the world, copycat designers began working on knockoffs available for a fraction of the price. [iv] Copying in this industry is rampant, yet competition, innovation, and investment remain vibrant.[v] The global fashion industry sells more than $750 billion of apparel annually. [vi]

Some people argue that despite the amount of “copying”, the fashion industry produces high levels of innovation, and attracts the investment necessary to continue in this vein. How true is this?

Many legal commentators have discussed the status of fashion design in IP law. [vii] Many criticize the current legal regime, claiming that it fails to protect apparel designs, and claim for a stronger one. [viii] They believe that design piracy is unfair and detrimental to original designers, costing them hundreds of millions of dollars every year, as it allows design pirates to reap the benefits of their creativity, labour and risk-taking. [ix] Notions of justice and fairness suggest that these designers should be compensated and protected by law. [x] Unscrupulous businessmen could manufacture knock-off copies of any designer's ensemble and flood the marketplace with cheap imitations of haute couture. [xi]

 

The call for protection of designers

Prices of goods might come down, as designers compete with free-riding copy-cats. A company that pirates other designs does not have the high designing costs, and can afford to sell its products at a lower cost, causing problems for the creators by forcing them to lower their prices due to the competition, thus making its venture less profitable and lessening the incentive to create its own designs. [xii]

Another issue on this point is the protection of new designers. While a troop of established design houses from Prada to Yves Saint Laurent exist, the design market continuously witnesses the birth of many young designers, who are the most vulnerable to design piracy.  Small businesses lack the financial ability to bring suits against design pirates, something that larger firms take advantage of. A new designer would face the threat of losing  credibility with customers, a decline in value of the original design, and may even be forced out of business. [xiii]

It is believed that fashion designing is a form of art that requires more than the minimal level of creativity needed for copyright protection. Hence, the argument that fashion designs should be granted the same protection as other forms of art. [xiv]

 

Case against IPR protection in the Fashion Industry

Can this be a case where the cure could prove to be worse than the disease?

Professor Raustiala and Professor Sprigman, refer to a concept called ‘negative spaces’ which defy traditional justification for intellectual property law [xv]. A ‘negative space’ constitutes a set of creations where the traditional theories of IPR do not apply. In their paper, they apply the concept of ‘negative spaces’ vis-à-vis the fashion industry and prove the inapplicability of traditional justification for IP protection to the fashion industry. Instances of copying in the fashion industry have been criticized and but still stand accepted and tolerated on the grounds of ‘homage’, ‘dedication’, ‘inspiration’ rather than classifying such actions as infringement and taking legal action. [xvi] The operation of the fashion industry requires large  investment, constant innovation and production within short periods of time on a  continual basis, irrespective of IPR protection. [xvii]

The life cycle of an element in the Fashion Industry has the following stages: A novel artistic creation, say, a silk stole, is introduced, to distinguish from the masses that have followed a certain trend until a new trend or fashion is introduced. This novel creation –‘silk stole’ then witnesses popularity, and rapid mass imitation. Now, too many people own this ‘silk stole’. This forms yet another need to create, innovate and be distinct from the masses. The need to innovate springs from the need to distinguish from the masses and move away from standardization. [xviii]

Despite several remedies against copying available to fashion designers, they do not wish to utilize them. The main explanations for this are the features of the fashion industry and the costs of registration process. The seasons in fashion are really short, only a few months, [xix] whereas the protection granted with registration lasts at minimum five years. As this article by Christian Barrère and Sophie Delabruyère rightly puts it, majority of fashion designers consider that, with fashion seasons lasting only a few months, the five-year minimum protection period offered by these registration systems is not appropriate for often ephemeral fashion designs, and that their time and money would therefore be better spent on creating new designs than on registration. [xx]

In this industry, the purpose is not to improve but to create. However, the main input of the products is creativity and heritage, which cannot be easily protected as they include a cultural commons dimension. [xxi] If the typical boy-meets-girl story or the works of Prem Chand and Tansen were copyrighted, most of the music, films and novels we enjoy today would be illegal. In any creative sector, granting excessive rights stifle creativity, because every right asserted takes away "raw materials" and “inspiration” from future creators. [xxii] In fact, Professor Raustiala and Professor Sprigman believe that piracy ironically benefits designers by inducing more rapid turnover and additional sales. [xxiii] After all, imitation is the highest form of flattery.

Another argument in favour of a low IP regime is that it helps the industry establish trends via a process called “anchoring”. Copying “anchors” the new season to a limited number of design themes. Thus anchoring helps fashion-conscious consumers understand when the trend has shifted, what defines the new trend, and what to buy to stay “in fashion”. [xxiv] Copying is an important element of the trend-making process. It helps set trends and then helps destroy them, that is, once a design has been widely copied, the consumers hop on to the next new thing. Copying creates trends, and trends are what sell fashion. Every season we see designers  “take inspiration” from others. Trends catch on, become overexposed and die. [xxv] This is the familiar fashion cycle, which is possible due to the absence of copyright.

But perhaps the greater risk is in the hands of lawyers (and designers who can afford them), who would be among the biggest beneficiaries, as disputes would likely erupt into expensive, time-consuming lawsuits. With copyright protection fashion prices will rise, and the creative cycle will slow down. [xxvi]

The bottom line is, it is through copying that the fashion industry creates trends. And it is trends that sell fashion. For this reason, fashion designers’ “freedom to copy” does not harm the fashion industry, and may in fact be necessary for the industry’s continued success.

To protect, or not to protect, that remains to be seen.

 

 

 

[i] See http://www.wipo.int/about-ip/en/.

[ii]  Raustiala Kal and Sprigman Chris, The Piracy Paradox: Innovation  And Intellectual Property In Fashion Design,  Virginia Law Review, 92 (8) (2006) 1687

[iii] Pranjal Shirwaikar, Fashion Copying and Design of the Law,  14 Journal of intellectual Property Rights 113(2009)

[iv] Cheryl Wischhover, The First Kate Middleton Knockoff Wedding Gowns and  Accessories HitStores; Here Are the Good, the Bad and the Ugly,  FASHIONISTA (May 2, 2011, 12:10 PM).  Available at http://fashionista.com/2011/05/check-out-the-first-kate-middleton-knockoff-wedding-gowns-and-accessories/

[v] Supra at ii.

[vi] Safia A. Nurchai, Style Piracy Revisited, 10 J. L. & Policy 489 (2002).

[vii] See hereherehere and here, for some papers on this topic.

[viii] Have a look at this website for a petition against fashion piracy.

[ix] Leslie Hagin, A Comparative Analysis of Copyright Laws Applied to Fashion Works:  Renewing the Proposal for Folding Fashion Works into the United  States Copyright Regime, 26 Tex. Int’l L. J. 341 (1991)

[x] Priya Bharathi, There is More Than One Way to Skin a Copycat:  The Emergence of Trade Dress to Combat Design Piracy of Fashion Works,  27 Tex. Tech L. Rev. 1667 (1996)

[xi]  Lynsey Blackmon, The Devil Wears Prado: A Look at the Design Piracy  Prohibition Act and the Extension of Copyright Protection to the World of Fashion,  35 Pepp. L. Rev. 1 (2008).  Available at http://digitalcommons.pepperdine.edu/cgi/viewcontent.cgi?article=1109&context=plr.

[xii] Tsai, Julie P., Fashioning Protection: A Note on the Protection of Fashion Designs in the  United States, (2005) Lewis & Clark Law Review, p. 1-33.  Available at http://law.lclark.edu/live/files/9704-tsaipdf.

[xiii] Ibid.

[xiv] Ibid.

[xv] Supra at ii.

[xvi] Supra at iii.

[xvii] Ibid.

[xviii] Ibid.

[xix] WIPO, 2005, IP and Business: Intellectual Property in the Fashion Industry,  WIPO Magazine, May-June, No3, 16-19.

[xx] Fischer Fridolin, Design Law In The European Fashion Sector,  2008, WIPO Magazine,  January-February, No.1, 12-13

[xxi] Christian Barrère, Sophie Delabruyère, Intellectual Property Rights on Creativity  and Heritage: The Case of the Fashion Industry, European Journal on Law and Economics,  2011, Vol. 32, 3: 305-339

[xxii] Christine Cox and Jennifer Jenkins, Between the Seams, A Fertile Commons:  An Overview of the Relationship Between Fashion and Intellectual Property, The Norman Lear Centre. Available at http://learcenter.org/pdf/RTSJenkinsCox.pdf.

[xxiii] Supra at ii.

[xxiv]  Ibid.

[xxv] This Phenomenon is called “induced obsolescence”. See Copycats of the Red Carpet, Kal Raustiala and Chris Sprigman, Freakonomics Column, New York Times, March 3, 2010. Available at http://newsroom.ucla.edu/stories/copycats-of-the-red-carpet-154674

[xxvi] Kal Raustiala and Christopher Jon Sprigman, Why Imitation is the Sincerest Form of Fashion, The New York Times, August 12, 2010. Available at http://www.nytimes.com/2010/08/13/opinion/13raustiala.html?scp=1&sq=raustiala&st=cse&_r=3&.