Discussing IPR Issues when AI is the Author: A Bird’s Eye Perspective

Abstract: The copyright world skipped a beat when copyright over a selfie taken by a monkey was in question. The final settlement however, was extremely disheartening. It did not take long thereafter for the question of patentability of Artificial Intelligence (AI) and machine learning or the copyrightability of their creations to be discussed.
This paper addresses the issues relating to AI and Intellectual Property Rights (IPR) in a categorized schematic manner, while also giving a brief introduction into the areas of their fusion. The first part follows with an introduction to artificial learning and AI. It discusses the extent to which these learnings have developed and where the world’s knowledge about AI is headed. It could be considered as a primer to the reader’s already existing knowledge on AI. This part also talks about various creations of AI which would put their IPR into question.
The second part of this article discusses in particular the copyright influences of AI –comparing its knowledge to that of our existing judicial reviews and research. It portrays the easiest possible way ahead for India, learning from the fellow judicial experience, to encourage AI’s copyrights. The third part is a similar discussion, but from a Patent perspective. It is an interesting amalgamation of discussions dealing particularly with the global experience concentrating on European and American knowledge. The final part of the article concludes this discussion with key takeaways and globally inclusive steps drawing ideas from various conventions.


Authors: Dr. G.B. Reddy is a Professor of Law in the Faculty of Law, Osmania University, Hyderabad. He has authored two books and eleven articles on different aspects of IPR, his primary area of research focus. He is currently the co-ordinator of the Osmania University Centre for Intellectual Property Rights and Patent Facilitation Services, in addition to being the CIPAM IPR Chair. He may be contacted at gbredlaw@gmail.com.

Ms. Sai Bhavana Vemuri is a graduate of DSNLU, Vishakhapatnam, and holds an LL.M in Technology Laws from O.P Jindal University, Haryana. She has worked on various IPR based research projects in association with JIRICO and MHRD IPR Chair-IIT Madras among others. She may be contacted at saibhanav@gmail.com.

The full text of the article can be found as a PDF here.

Implications of the Prius Judgment for Trans-Border Reputation and Passing-off in India

Abstract: The old Indian trademark statute, the Trade and Merchandise Marks Act, 1958 was repealed by the Trade Marks Act, 1999. The Indian Courts have rendered many trademark decisions under both these statutes, where rights based on trans-border reputation of a plaintiff’s marks were upheld based on the doctrine of universality, which states that a mark should signify the same source globally. However, in 2017, a Supreme Court judgment (“the Prius case”), without any discussion or analysis of the numerous earlier decisions, rendered a decision based on the principle of territoriality of trademarks, which requires that a trade mark should be recognized as having a separate existence in each country. Since Article 141 of the Indian Constitution mandates that the law declared by the Supreme Court is binding on all courts within India, would this decision come in the way of enforcement of rights in well-known marks based on trans-border reputation? The authors seek guidance from a catena of the Supreme Court’s own decisions, including a Constitution Bench decision to conclude in the negative. The said line of decision states that, when judgments of a superior court are of coequal benches and, therefore, of matching authority, then their weight inevitably must be considered by the rationale and the logic thereof and not by the mere fortuitous circumstances of the time and date on which they were rendered. The authors conclude that, since the Prius order, decided by a coequal Bench of the Supreme Court, took a sudden U-turn from the well-settled ‘universality’ principle to the ‘territoriality’ principle without assigning any reasons for such a departure and without discussing why its own earlier judgments such as Whirlpool and Milmet Oftho are irrelevant, it raises questions of soundness. The article concludes that the Prius case is not the last word in deciding issues of trademark rights based on trans-border reputation.


Authors: Mr. Rajendra Kumar is a founding member of K&S Partners, an intellectual property law firm situated in New Delhi. He chairs the trademarks practice of the firm, and is the head of litigation for trademarks, copyrights and geographical indication disputes with over 34 years of experience. He holds a PG diploma in “UK, US and European Law of Copyrights and Related Rights” from King’s College, London, United Kingdom. He may be contacted at rajendra@knspartners.com

Ms. Aishwarya Menon is a partner at K&S Partners, and has worked for over a decade on formulating strategies for protection of trademark portfolios and geographical indications in India and the sub-continent. She holds an LL.M in intellectual property law from Queen Mary University of London, United Kingdom. She may be contacted at amenon@knspartners.com.

The full text of the article can be found as a PDF here.

Interface of IPR with Genetic Resources And Associated Traditional Knowledge: International Provisions

Abstract: Traditional knowledge, developed and passed on generation to generation by indigenous and native (aboriginal) communities, is an integral part and an identity mark of the ethos and cultural existence of a community. Existent in diverse fields such as food, medicine, tools, yoga, etc., traditional knowledge must be protected and safeguarded in order to ensure sustainable development practices.
In light of the same, this paper is an honest attempt to explore varying issues and challenges that exist in recognition of IPR in the area of traditional knowledge. This paper provides an insight into the established norms and principles, national as well as international, that govern this complex yet extremely important interface. An overview of the recent developments, including the misappropriation of genetic resources, the strengths, weaknesses and inherent contradictions in provisions of the TRIPS agreement and the CBD mechanism along with RTAs, and the role of the WTO, etc. is provided as a necessary background and discussed in detail, so as to present a comprehensive view of the debates surrounding the extension of IPR protection to traditional knowledge. The present research, through anthropological, biological and economic reasoning and rationale, argues for the establishment of an IPR regime that aims to balance the rights of local people with the obligation to preserve viable ecosystems for posterity.


Authors: Dr. Chakrabarti is an Associate Professor of Law from National Law University Jodhpur, Rajasthan. She may be contacted at 73.gargi@gmail.com.

Mr. Singh is an Assistant Professor of Law from National Law University Jodhpur. He may be contacted at anandksingh054@gmail.com.

The full text of the article can be found as a PDF here.

Trends of Artificial Intelligence Patent Filing: Indian Scenario & Its Legal Aspects

Abstract: Artificial Intelligence (AI) has led to a rapid digital revolution, which is the ability of machines with intelligence to respond and solve problems like humans. AI has had a wide impact on the technological, economic and social aspects of the world. Artificial Intelligence touches every sphere across the globe, such that these expert systems are the most integral part of the new technology. Thus, it is essential to protect the human like intelligence as it is treated as an intellectual property.
This paper looks into the analysis of patents in AI related inventions filed in India between 2005 and 2018, with emphasis to the signal processing technology field in India. The paper helps gauge the technological advancements that India has achieved in the last 13 years, considered more prominent as per the latest WIPO analysis of trends.
Furthermore, the paper makes a clear categorization of all granted patents, pending patent applications and abandoned patent applications in comparison with the corresponding applications filed in the US and Europe, where high filing rates are witnessed.
Moreover, the paper facilitates the study of the problems confronted by AI technology in legal as well as technological aspects, to file in India, that can help to enhance the filing and ultimately help to boost the technology in India.


Authors: Ms. Vijitha Rajan is a research fellow at IUCIPRS, CUSAT, and is a ‘Woman Scientist’ in the KIRAN IPR programme under the Department of Science and Technology, Government of India. She holds an M.Tech in signal processing engineering. She may be contacted at rajanvijitha@gmail.com.

Ms. Sreelakshmi M.S received her Master’s degree in electronics from CUSAT in 2016, followed by an LL.M in IPR from IUCIPRS, CUSAT. She is currently pursuing her Ph.D at IUCIPRS, with her current research focussing on problems in patentability of artificial intelligence related inventions. She may be contacted at sreelakshmims11@gmail.com.

Dr. I.G Rathish is an Assistant Professor of the Inter-University Centre for IPR Studies (IUCIPRS), CUSAT. He is entrusted with the task of facilitating filing of patents amongst teaching and the research fraternity, and sensitisation of IPR across forums. He is also a registered patent agent and the co-ordinator of the IPR Facilitation Cell at IUCIPRS. He may be contacted at rathishig@gmail.com.

The full text of the article can be found as a PDF here.

Pharmaceutical Patents: Weighing Intellectual Property Rights On The Human Rights Scale

Abstract: Intellectual Property Rights (IPR) and Human Rights originated from unrelated domains of human life. Turn of the civilization in the second half of the last century has pitted IPR against human rights. Pharmaceutical patents and right to health have taken opposing corners in the amphitheater of international relations and policy making. This paper endeavors to chart the relationship between the two jurisprudential streams in recent times and its global implications reflecting certain traits on the Indian scenario. The discussion will encompass the evolution of international intellectual property regime with its implication on pharmaceutical patents and the expansion of concepts of Human Rights to right to health, their opposing theoretical basis, and the way industrialized and less developed states reacted and adapted to this fluid relationship.


Author: Dr. Mouri Ghosh is currently pursuing an LL.M in Intellectual Property Law from the School of Law, University of Edinburgh, Scotland. The author also holds a Ph.D in the field of Toxicology and Pharmodynamics. She may be contacted at mouri.ghosh@gmail.com.

The full text of the article can be found as a PDF here.

The Distinctiveness of Colour Trademark: A European and Russian Experience

Abstract: The legal status of non-traditional trademarks stirs up enormous controversy owing to the specific nature of these kinds of trademarks and the uncertainty of juridical regulation. The need to agree to a united approach of regulation is dictated by the existing imbalance between the interests of business society and government authorities. The author seeks to reveal similarities and differences with respect to the approach of judicial and administrative bodies as to the registration of non-traditional trademarks – colour trademarks in two different jurisdictions (EU and Russia). The relatively recent case law in both jurisdictions illustrate an apparent reluctance to grant the status of colour trademark. Further, the concept of acquired distinctiveness is still a stumbling block in the way of successful registration of colour trademarks due to complexity in proving the same. For the resolution of the situation at hand, legislative and judicial bodies have to adhere to one-for-all approaches concerning non-traditional trademarks, with any other approach leading to legal uncertainty, thereby negatively impacting intellectual property as a whole.


Author: Mr. Konstantin Voropaev is a lawyer and compliance officer with extensive experience in different industries such as pharmaceuticals, FCMG, IT etc. The author works on international commercial arbitrations in Russian, European and Central Asian jurisdictions, and possesses an LL.M in International Commercial Law from Robert Gordon University, Scotland. He may be contacted at kvoropaev90@gmail.com.

The full text of the article can be found as a PDF here.

Changing Regulatory Anti-Trust Attitudes Towards High-Technology

Abstract: The last few years have witnessed a slew of regulatory changes in the Anti-trust space primarily instigated by the technological changes and the industry practices adopted in the technology sector. In this research paper, an attempt has been made to understand the anti-trust regulatory and judicial developments in the technology and the telecommunication sector. In the first part of the paper, it attempts to analyse the industry practices adopted by the Corporations such as Exclusive and sole licensing practices, the practice of sale restrictions and the sale of output restrictions. Each of these sub-divisions under the first part, will be examined across two levels: one, between the practice adopted by the corporations between competitors and two, the practice adopted by the corporations between non-competitors. In the second part of the paper, the focus will be to understand the anti-trust developments in the telecommunications sector. This section will analyse the following topical developments: abuses related to tariffs, predatory pricing, excessive pricing and abusive behaviour related to third party access. Finally, the paper will also briefly note the patent abuses that have arisen in the telecommunication sector and the implications for anti-trust on that matter. The primary focus in this paper is on the developments in the European Union with references to other jurisdictional practices.


Authors:  Ms. Meghna Sharma is a graduate research assistant at the Centre for Human Rights Studies at Jindal Global Law School. She has earlier served as a law researcher at Delhi State Legal Services Authority after graduating from Rajiv Gandhi National University of Law in 2018. She may be contacted at meghnasharma95@outlook.com.

Mr. Prashant Singh graduated in 2017 from Rajiv Gandhi National University of Law. He is currently serving as Associate Advocate, Chambers of Mr. P.S. Narsimha, Senior Advocate, Supreme Court of India. He has earlier worked as a Research Fellow at the Centre for Human Rights Studies, Jindal Global Law School. He may be contacted at prashantsingh93@live.com.

The full text of the article can be found as a PDF here.

Comments On The Draft Geographical Indications Guidelines: Implications And Discrepanciespan

Abstract: On 24th June 2019, the Department for Promotion of Industry and Internal Trade (DPIIT) under the Ministry of Commerce and Industry released the Draft Guidelines for the use of Geographical Indications (GI) Logo and Tagline. The logo and tagline are intended to serve as a certifying mark which will enable consumers to identify all authentic and genuine Indian GI products.
By ensuring that only those permitted use the logo and tagline, consumers are expected to recognise authentic GI products. Thus, it is a significant step towards ensuring that only genuine and authorised GI products remain in the market. The objective of the guidelines is praiseworthy as one of the major problems faced by the owners and consumers of the GI is the presence of duplicate products in the market. However, the question is whether the guidelines in its present form sufficiently addresses all concerns. This article analyses and critiques the guidelines by raising fundamental concerns regarding the practical implementation of the guidelines in its present form and the possible solutions thereof.


Author:  Mr. Sulok S.K is a research scholar currently pursuing an integrated LL.M in Intellectual Property Rights and a Ph.D in Geographical Indications from Cochin University of Science and Technology (CUSAT), Kochi. He may be contacted at sk.sulok@gmail.com.
The full text of the article can be found as a PDF here.

Facets of IP in the Sports & e-Sports Industry: Traversing Horizons

Abstract: A football team called Patiala City FC was established in the year 2015- with a number of academy grown players. In a short span of time, it came to the forefront in the Indian footballing arena. Its journey started from the third division of the football league, winning back to back promotions to the premier football league of India, currently holding the pole position in order to qualify for AFC Champions League, the equivalent to the UEFA Champions League held in Europe. Due to this feat, the club has become one of the most popular clubs in India, with a large fan base. The club has an impressive Jersey inspired from the rich culture of Punjab, a regal logo and a thumping motto “Our Blood, Our Sweat, Your Tears”. Its merchandise (Jerseys, Player memorabilia, etc.) was selling like hot cake. The Club even had a home-grown centre forward player, who was fundamental to the team’s success over the past few years. His stellar performances made him a top target for European Clubs, but with success came forth the breach of his image rights, personality as well as privacy. Lack of legal knowledge, as well as the void of law in our country, made things tumultuous both for the club and also the player to sustain their economic rights. Popular video games used his persona in the game without any consent or contract, with the player seemingly confused as to what legal action, if any, he has at his disposal and should subsequently pursue.
Though the situation narrated above is hypothetical, it might ensue that a high-calibre athlete could potentially lose out on revenue opportunities from the utilization of his image rights and suffers this breach of privacy, failing to tap in the commercial conduits which were worth fortunes, flowing from his right to publicity, along with jeopardising the position of our country’s sporting franchise. In these situations, there is nothing that the athlete or the franchise can do except for approaching the court under the outmoded facets of law. Thus, there is an increasing need for protecting the IPR in the ever-growing arena of Sports and the myriads of E-sports.


Author:  Mr. Arnav Bishnoi is a 5th year student of B.A. L.L.B. (Hons.) at Rajiv Gandhi National University of Law, Patiala. He will be joining the disputes resolution department of Singh & Associates, New Delhi upon completion of his degree. He may be contacted at arnavbishnoi@gmail.com.

Mr. Achint Johri is pursuing the 3rd year of B.A. L.L.B. (Hons.) at Rajiv Gandhi National University of Law, Patiala. His area of interest circumscribes research in IPR & Sports Law. He may be contacted at achint.johri@gmail.com.

The full text of the article can be found as a PDF here.

Price Control on Patented Drugs in India

Abstract: In this work, the author looks at the bigger question: whether the demands of abolition of price control by the pharmaceutical innovator companies have any merit, and the policy options with a government post-TRIPS to ensure launch of new drugs by Big Pharma without compromising affordability. The aim of this Article is to study the impact of price regulation on launch of patented drugs in India, and whether the faults can be corrected simply by removing price ceiling for five years and if doing so is an ethical and constitutional step.
The author also seeks to examine the importance of standard of patentability and how patent authorities implement it, and their expertise in instilling a conscious understanding of the inherent effect of patenting on right to health.
The Article solves these questions in the context of implications of price control in the Indian pharmaceutical industry with its unique history of generic drug production, in terms of balancing accessibility (the launch of new drugs by foreign companies) with affordability (the purchasing capacity of the people). The author also examines whether changes in the patent process, reforms in price-control processes and a cost-based approach would be a viable approach forward.


Author: Ms. Manisha Bhau is a 4th Year student of B.A LL.B (Hons.) from National Law University, Delhi. She is interested in the study of IPR through the lens of constitutional law and human rights. She may be contacted at manisha.bhau16@nludelhi.ac.in.

The full text of the article can be found as a PDF here.

Online Intermediary Liability and Copyright Infringement: A Comparative Study of the Framework in India and USA

Abstract: In the age of the Internet, the commission of copyright infringement by innumerable anonymous users through internet intermediaries, has become rampant. Owing to the technical difficulties of tracking down each individual infringer, copyright holders have held the intermediaries who are facilitating the access and use of the Internet, responsible. An argument in support of holding the intermediaries responsible is that the intermediaries are also profiting of such infringing content indirectly. However, the nature of the Internet is such that the normal framework of redressal accorded to copyright infringement in the tangible medium, cannot be applied on the Internet. Imposing a very strict standard of liability on intermediaries will adversely affect the dynamic nature of the Internet and curb economic development in the digital age. Due to these reasons, the development of an intermediary liability and copyright infringement framework which balances conflicting interests, has become essential.
In this paper, the author has made comparisons to the frameworks that exist in India and USA under the Digital Millennium Copyright Act (DMCA); as the US framework has given rise to a number of successful internet-based businesses. By this, a robust framework has been proposed to be implemented in India. In pursuant to this objective, this paper has been divided into three parts. Part I provides an outline of the legal framework of intermediary liability and copyright infringement that exists in India and USA. Part II makes a comparative study between the legal framework in India and USA, in order to identify the lacunae and deviations that exist. Part III makes certain recommendations to be implemented for having a more conducive and effective intermediary liability and copyright infringement framework in India, and subsequently concludes.


Author:  Ms. Amala G. and Ms. Ananya K. are second year students of the B.A LL.B (Hons.) degree from Christ (Deemed to be) University, Bangalore. They may be contacted at amala.g@law.christuniversity.in and ananya.k@law.christuniversity.in.

The full text of the article can be found as a PDF here.