Month: January 2021

SHOULD WE START SNIFFING…?

          Trademark law has two fold objectives; firstly the trade, business and goodwill of the said mark which comes hand in hand with its trademark and secondly to protect the public from deceiving and malafide intentions which causes confusion amongst the general public. Trademark is usually known for their uniqueness of the word and the logo. It is a sign of quality. The more unique and popular the trademark is, it is more likely to attract the customers. Trademarks are popularly known for distinguishing the brand from one another and also for its uniqueness. Trademarks are very well famous amongst the people and now it has become a familiar concept also in India.

          Now, in general parlance the territory of trademarks according to general public is, word, phrase, symbol or particular design by which that identifies or distinguishes the source of the goods and services.

However, the territory of the trademarks does not stop here. It also includes non-conventional marks. Such as smell mark, sound mark, taste mark etc. now-a-days sound marks has become famous as its best example is the nokia jingle which worldwide famous. Only by hearing that particular jingle you can clearly state that this particular product belongs to nokia. Similarly there is another non-conventional mark which is smell mark. In general parlance the smell mark is a rare breed which includes the debate i.e. “should it be included in trademarks or not?” but as trademark is defined under the Trademarks Act, the trademark should be able to present graphically and also it should distinguish the goods and services from one person to another.

          It is clearly stated in Rule 26 of Trademarks Rules, 2017; the mark should be represented graphically for registration. Therefore it creates hindrance to olfactory mark to be registered under Trademarks Act, 1999 in India. Now the unconventional marks are immerging in the market and smell mark is one of them. It is always said in many behavioral studies that smell triggers more vivid and emotional memories than any image. Smell always brings out the closeness with that particular memory. It shows that the smell of a particular thing can be engraved in human mind. With the help of that smell imprints a person can clearly distinguish between the goods from one another. Therefore it fulfills the basic requirement of the trademark rules, that the mark should be able to distinguish the goods from one another.  

CONCLUSION:

                        The smell of any particular thing can imprint its uniqueness on the human mind. This makes it easy to differentiate it from any other goods. Human mind can identify the smell of a particular product and can distinguish it from other goods. As it can be distinguishable, it serves the requirement of the rules. Therefore unconventional marks i.e. smell mark may be recognized and registered under the Trademarks Act in India.  

BY

SHRUTI TOPKAR

B.A.L.L.B

JUNIOR ASSOCIATE

Conjunction of Fashion Law & Artificial Intelligence

            The use of Artificial Intelligence in the Fashion Industry has gained momentum over the past few years. Though it provides a myriad of opportunities and innovative services like ability to try-on clothes and make-up and give styling solution digitally, it also presents potential copyright challenges. Brands like Zara seek to implement interactive fitting rooms for a personalized styling solution for their customers, while other brands use technology and data analysis to understand and respond to customer’s preferences. With constantly changing trends, AI is being used to analyse existing consumer data, sale pattern, profitable element of the apparels to predict the upcoming trends. It is being used to create and generate fabric designs, silhouettes, and sketches. However, in the light of the current IP legislation and growth of AI technology, who owns the copyright in the AI-created designs is a point of debate.

            When designs are created using an AI, but the inputs and instructions are given by human, ownership of the designs can be attributed to the human. However, with developments in technology, AI- machines are now capable of creating designs without human input or interference. In such a case, where a design is created without human interference, the ownership can be attributed to the person who has the copyright in the AI software used to generate the designs or to the AI itself. Currently the Indian Copyright law does not give exhaustive rights to the AI-generated designs and gives no clear answer to who owns the designs created using AI.

Further, Section 13 of the Copyright Act clearly defines the copyright subsists only in original work. Thus, for a copyright to subsists in an AI-generated work, the designs must be original and satisfy all the test of originality but whether an AI creates original designs is still questionable. In India, the law has time and again focused on the requirement of human inputs and intellect for copyright protection. AI created designs could be protected under the copyright law as compilations. But to claim copyright in compilations, the designs must be produced with exercise of skill and labour and not be a mere product of labour and capital.[1] Copyright law only protects fruits of intellectual labour, skill and judgement and not work created using a machine. Given that the law only protects works with some human contribution and skills, question arises what happens to designs created using AI when human input is limited to pushing a button or speaking?

No doubt AI in the fashion industry is a lucrative and attractive venture but it poses several legal challenges. Investors and designers are unable to gauge the value of the designs created by the AI due to the ambiguity of law, whether the designs will be protected or who will own the designs. Particular attention must be given to the ownership of the designs and that companies and designers using AI, should explicitly address the question of ownership beforehand, to protect them against the legal challenges.

[1] Eastern Book Company & Ors v. D.B.Modak & Anr. ((2008) 1 SCC1)

IPR in Sports – Part 1

Introduction:

People are into sports activities since very long and some of them follow one game with immense emotions and with great passion. In this globalized world the passion for any sport has grown immensely. Because the growth in fan following around the globe for games like football and cricket it has created communities of the fans in different countries and because of that the passion for sports is growing and it is creating job opportunities for people around the globe. The sports industry connects people around the globe and fans around the world get attached to each other emotionally. This industry is growing rapidly and thus there is a need for Intellectual Property protection in the industry. Because Intellectual Property Rights are very important in the field of sports and it should be protected by various sports companies who promote various teams and also those teams should also protect their Intellectual Property around the world.

Intellectual Property Rights in the field of Sports:

Innovation and creativity are key drivers in the world of sports.[1] In this field many people are involved in making the sporting industry better and because of that the athletes are getting best possible opportunities and it also helps to improve their performance in their respective sports. When we talk about Intellectual Property we are talking more precisely about Patents, Copyright and Trademarks. Patents encourage in technological advancement which ultimately results in good sporting equipment. Trademarks distinguishes the unique identity of any team, event or any sporting gear. Copyright is related to broadcasting rights of the broadcasters who invest heavy amount of money to broadcast big sports events around the globe. So we can say that Intellectual Property Rights are basis of this industry.

If we take an example of any Sports Shoes and the talk about how IP Rights are involved in it then it goes as follows:

  • Patents may protect the innovation and the technology which is involved in the making of the shoes.
  • When we talk about ‘Designs’ then without a doubt it protects the look of the product.
  • Trademark plays an important role by distinguishing the shoes of one brand from the other shoes brand which could be similar to that and it also protects the reputation of the shoes brand in the market.
  • Copyright is involved in protecting the artwork which is used to make that particular shoes and also audio-visual creations used to publicize the shoe in the market.

Intellectual Property lies at the heart of the huge commercial opportunities offered by the world of sports. Intellectual Property rights (especially patents, trademarks and broadcasting rights) – and the legal protection they give – help to secure the economic value of the sports.[2] Business related affairs such as merchandising, advertising is controlled by IP Rights. If we see the various football clubs around the world like Manchester United, Liverpool or Real Madrid they are the perfect example of Intellectual Property capitalization. They have invested so much to protect their brand value in the market. In country like India where sports industry is growing day by day people are becoming aware of how important it is to invest in Intellectual Property. If we look at the current market of Indian Sports then there are lots of commercialization and investments are happening. Indian Government is also trying to protect the interest of players, teams and the investors also in many ways by the introduction of ‘National Sports (Development) Bill, 2011’ and hopefully it will be able to control the management of sports up to some extent.

Conclusion:

Intellectual Property Rights play a very vital role in the sports industry. Many aspects where IP rights are involved such as Personality Rights, Domain Name etc. there is a chance of exploitation in a very large scale. So, I would say this concept of protection of IP rights in the sports industry should be considered seriously and it is the need of the hour.

[1] Sport and Intellectual Property (wipo.int)

[2] Sport and Intellectual Property (wipo.int)