RESHAM MEHTA

Saree in Law

Saree is well-known Indian attire worn by women not only in India but around the world. It has captivated audiences since time immemorial due to its sensuality and versatility. A saree can be draped in numerous ways that highlight its versatility, culture, tradition, community, occasion, and beauty. Saree is an imperative part of the Indian tradition and culture. Whether it’s Madisari, a saree-draping style that was traditionally worn by women after their marriage in the Iyengar and Iyer culture of Tamil Nadu, or the Atpoure Shari, the saree draping style of West Bengal or Kappulu a saree draping style of the older women in Andhra Pradesh or the Nauvari worn like a dhoti in Maharashtra, the draping or tying style of an unstitched garment or 3.5 to 9-yard saree, varies by region, community, functionality, and, on occasion. In a world full of ever-changing fashion trends and fast fashion, Indian sarees and the traditional draping style remain constant. India has a treasure trove of saree styles and different ways of draping them that have even inspired the international fashion world.

Despite this India lacks a law regime to protect the saree draping styles. The Indian Trademark Act 1999 can protect the brands selling sarees while the prints and designs can be protected under the Copyright Act 1957 under original artistic work or the Designs Act 2000 for the designs aesthetically appealing. However, one may think to protect saree draping under ‘any other work of artistic craftsmanship’ under the Copyright Act 1957[1], but issues related to calculating the time, originality, and who to attribute the authorship arise. While the most obvious branch of IP the mind associates to saree is Geographical Indications, however, registered GIs under the Geographical Indication Act 199 like Bhagalpuri silks, Kanchipuram silks, Mysore, and Muga silks, which are world-famous as fabrics associated primarily with sarees. Further, saree draping is fundamentally considered a process or an activity, which may lead one to the domain of patent protection but due to the activity being in the public domain since time immemorial protection under the Indian Patent Act 1970 is not possible for saree draping.

It can thus be concluded the present IP regime in India including trademarks, copyrights, patents, designs, and even GIs mainly protect the brand name and logo, the weave and fabric, the manufacturing process, the unique designs, or a combination of all of these, and the community for protecting/maintaining the standards and nurturing the culture and tradition as GIs. But neither of the above talk or provide protection to saree draping.

How can India protect Saree Draping?

It is certain that the current IP regime in India cannot provide the much-needed protection to the myriad of saree draping styles prevalent in a culturally rich country like India. In such a scenario, India can develop the lesser-known branch of Intellectual Property Rights known as Traditional Knowledge which further incorporates Traditional Cultural Expressions. Saree draping styles perfectly fit under the WIPO definition for Traditional Cultural Expressions[2], as tangible forms of expression – folk costumes. Saree draping styles can be envisaged as folk / traditional costumes worn by when and women of communities. Thus, a well-codified law to protect such traditional knowledge or traditional cultural expressions which are passed from generation to generation could help to protect saree draping styles in India. However, locating the owner of the traditional cultural expressions and the fact that sarees are commonly worn in Nepal and Bangladesh, proprietor and territory issues may be common.

However, India can adopt the economic right ‘Domaine Public Payant’ to protect traditional cultural expressions such as saree draping styles. According to this right, when the work enters the public domain after the normal period of protection expires, it cannot be used freely as in the case of normal free public domain. On contrary, it requires a royalty to be paid for the commercial use of the work.[3] Thus, any non-Indian who commercially exploits Indian saree draping styles would be required to pay a royalty or prescribed fee to the collecting society or equivalent. Till date, only 5-6 countries have adopted and incorporated this right and could be a feasible option for India to adopt to protect saree draping styles as Traditional Knowledge and Traditional Cultural Expression. Saree is a prominent part of the Indian culture and a source of inspiration to fashion trends across the world. Protecting the different traditional ways of draping a saree is in fact an essential way to protect the diverse culture and traditions in India.

[1] Section 2 (c)(iii)

[2] https://www.wipo.int/tk/en/folklore/

[3] https://unesdoc.unesco.org/ark:/48223/pf0000143960

Impact of AI Revolution on the Indian Trademark Law

WIPO in its meeting on Intellectual property and Artificial intelligence in November 2020 discussed the impact of artificial intelligence on trademarks and the impact on human perception will determine the registration and infringement of trademarks. Artificial intelligence (AI) has unparalleled potential to facilitate the management of IP, in the context of examination of trademark applications, assessing past trademark oppositions and infringement proceedings. For example, trademark IP offices have implemented several AI technologies for trademark search, trademark review and interaction with stakeholders to improve efficiency and consistency in processing of trademark applications. The trademark image search by WIPOs is an example of an AI tool used for trademark searches and trademark prosecutions[1].

Indian lawyers are still struggling to keep up with these technological advances inherent in AI and learning their advantages and disadvantages. The trademark law was introduced to differentiate the goods and services of one from those of another with an ultimate idea to avoid confusion among the public. However, the Indian trademark law has not changed ever since inception to adapt technological advancements, despite the multiple revolution and technological advancements which do affect the trademark law.

The fundamental concept of trademark is to cover human interaction between branding and purchasing emphasising on the likelihood of confusion for consumers due to phonetic, structural, and visual similarities and imperfect memories of a man with average intelligence and how it affects the purchasing process. With the onset of AI in the online market, these concepts are unlikely to be true and feasible. The existing legal doctrines like imperfect memory as held in the case Cadila Healthcare Limited v Cadila Pharmaceuticals Limited where the SC clarified that “the average consumer is an average intelligence with an imperfect memory,” or likelihood of confusion are old and obsolete. AI will neither have average intelligence of a man nor will the doctrine of confusion be applicable. Thus, there is a demand to change these obsolete doctrines to make trademark law well suited to tackle AI and the technological advances.

AI is likely to affect how trademark law is enforced in circumstance like several trademark applications, registration of new marks, unsynchronized trademark offices, vague and unclear trademark analysis by humans. The anti-counterfeiting measure using AI introduced by Amazon – the Amazon Project Zero[2] is just one of the few examples of companies using AI for trademark or IP enforcement. The AI revolution will impact all the legal fields and will definitely not spare the trademark law as well. It is important for India to take up its game, recognizing the importance of AI inventions in the country and to reform current trademark and IP laws to engage with technological inventions in this area. Intellectual property law should be consistent with AI and monitor progress to maintain transparency in intellectual property law and provide legal solutions for AI inventions.

[1] https://www.wipo.int/edocs/mdocs/mdocs/en/wipo_ip_ai_2_ge_20/wipo_ip_ai_2_ge_20_1_rev.pdf

[2] Shubham Borkar and Nitish Daniel, ‘A Comprehensive Review Of Amazon Project Zero (Anti- Counterfeiting Initiative) , Analysis In Detail Of The Policy, Issues, Takedown Mechanism And Its Applicability In India’ 6 March 2019, Mondaq < https://www.mondaq.com/india/trademark/787672/a-comprehensive-review-of-amazon-project-zero-anti-counterfeiting-initiative-analysis-in-detail-of-the-policy-issues-takedown-mechanism-and-its-applicability-in-india>

Muga Silk or Moonga Silk – The GI War

Muga Silk is a type of silk, autochthonous to the state of Assam, depicting their culture and heritage. Mekhela Chador, the traditional attire of Assam, even worn by the Bihu Dancers is made from Muga Silk. Owning this traditional attire made of Muga Silk is considered a matter of pride for people in Assam. The use and existence of Muga silk were mentioned in Kautilya’s Arthashastra. The GI law restricts the registered indication to the authorised users of a particular territorial area. The unique natural golden yellow wild silk of Assam was protected under GI since 2006 owning to its importance in the state and its mention as one of the finest silks. But has this protection been sufficient to protect against counterfeit products or fulfil the very purpose of GI?

The Geographical Indications of Goods (Registration and Protection) Act, 1999 provides the authorised user exclusive right to use the product for which the GI is registered[1]. Any other entity beyond the authorised user, using the same will result in infringement of law. Muga silk often faces tough competition from a type of silk known as Moonga Silk, sold in the markets of Delhi, Bihar, Jharkhand and UP. Moonga silk is further advertised using pictures of Muga Silk[2] and misguides the target audience in believing Muga Silk is synonymous to Moonga Silk. Many people are not aware about the characteristic natural golden yellow colour of Muga Silk and thus continue to buy Moonga silk considering it to be Muga Silk. The Silk Board of India has confirmed that Moonga Silk does not exist still it continues to be sold in the market synonymous to Muga Silk and no infringement action is taken against it. Even if infringement action is taken in the future, the burden of proof will lie on the users of Muga Silk to prove that sale of Moonga silk synonymous to Muga silk has diluted its image and that they have incurred substantial monetary losses and loss of reputation. The defendants of Moonga silk can easily defend by stating that Moonga is substantially different from Muga and there is no infringement of passion of the GI.

Muga vs Moonga is just one of the many instances where GI laws fail to adequately protect the registered GI products. Other textile products like Banarasi Silk sarees face tough competition from the synthetic fibre from China or states continue to fight over GI as in the case of Rasgulla GI war between West Bengal and Orissa. In India, rather than protecting the GI and obtaining a premium price for registered GI by the authorised users and benefitting the users and others who have a stake in the GI, emphasis is more on which states have a greater number of registered GI products. Hardly any GI infringement suits are filed against the infringer. The lack of awareness about GI laws, strategies and measures post-registration, no proper enforcement measures by the regulatory authorities and lack of brand building and advertising the GI further exacerbates the problem. It is time the authorities step up and take conclusive steps to deal with such infringing unlawful activities. In the present instance, the authorised users of Muga silk should take proactive steps and measures against infringers of registered Muga Silk GI and keep it intact as the registered GI of Assam.

[1] Section 21

[2] https://www.exportersindia.com/m-r-handloom-fabrics/moonga-silk-fabric-1322041.htm

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)

Fashion Modelling and Human Rights

No other industry requires its employees to pose in extreme temperature conditions and locations wearing uncomfortable apparels for that one perfect shot. Strenuous working hours, unnecessary strict diet, drug abuse, sexual abuse are only few issues faced by the models. The flurry of ambiguous regulations and legislations only add to the plight of the models. In such exacerbating circumstances and lack of laws and guidelines, is the modelling industry as glamorous and appealing inside as it is on the outside?

A model is perceived to look flawless with the high-end designer dresses, on point makeup but no one really peeps deep into issues and problems these models deal with to achieve their dreams. The fashion modelling industry has become a centre for human rights abuse and allegations, where fashion models are deprived of their basic human rights and dignity. Most fashion models are considered as mannequins or clotheshorse and modelling is often considered as an easy task- just an extension of dressing up, walking through the ramp, and posing for pictures. People often turn a blind eye to the toil and turmoil faced by these models.

Models work under constant pressure, in some sort of institutionalized dictatorship while dealing with harassment, hunger, depression and low standards of living. Often, models eat tissue and cotton balls to do away with their hunger, face discrimination based on colour and race, harassed sexually, drug and alcohol abuse, invasive backstage and non-consented photographs used for pornography, human trafficking and many more. The issues are also extended to the standard of leaving – the apartments in which these models stay are no less than prison where models are drugged without consent and raped on camera.

When models become vocal about their needs, they face ignorance and avoidance or even lose their job. These issues and plight of models evoke basic human rights like right to physical and psychological integrity, right to health, right against discrimination, right against human exploitation, right to life and liberty, no torture and inhuman treatment. The ratification of these rights are important for the personality development of models but are usually ignored by the modelling agencies. Even when the national legislations are applied to models, the main point of concern is only the weight and age of models.

Countries like France and Israel restrict working of models below the BMI of 18 and 18.5 respectively while Italy, Spain, and Denmark limits access of work of underage models and BMI below 18.5. The justification for imposing limitations on BMI is that the fashion industry must display healthy bodies. But its pertinent to note that a model may be healthy irrespective of the fact that her BMI is lower than the imposed restriction or she has a plus size body. Thus, the mental and physical wellbeing the model must be considered, by implementing routine medical check-up of the models, rather than considering the size or age or BMI.

Other national legislations like labour laws do provide dispositions to protect models but cannot track or prove all types of abuses like sexual or moral abuse. Thus along with these laws and guidelines, creation of non-profit organization like Model Alliance is necessary to give voice to models and protect models against opaque accounting practices of modelling agencies, protect image and privacy of models, protect against abuse and degrading living conditions.

Colour Mark in the Fashion Industry

Colour trends in the fashion industry are decided based on the season, latest trends, or what the consumers would choose to express him or herself. A colour trend cycle starts with the designer introducing it which is then accepted in the marketplace. The colour trends until the marketplace are saturated with it and then it moves on to the next colour cycle. Many brands try to monopolize and want exclusive rights over a particular colour which is associated with their brand. The protectability of colour in the fashion industry is a point of debate for many years, particularly in the wake of Louboutin’s Red Sole Case.

In the fashion industry, consumers buy a product based on the latest trends and styles and how aesthetically the colour appeals to the consumer. A monopoly of a particular colour could pose a genuine threat of colour depletion in the fashion industry and put other designers at a disadvantage. Further for a colour to be identified with a particular brand it must be used consistently through all seasons. But colours in the fashion industry are used according to the season such as earth tones for autumn, floral, and pastels for the spring, and white or lighter shades for the summer. If the designer uses colour according to the season, no monopoly can be granted to the colours due to a lack of acquired distinctiveness. Only limited colours can withstand all the changing trends and seasons in the fashion industry. Monopoly over these colours would put other designers at a competitive disadvantage and will deter other designers from entering the market as they will not be able to use the colours appealing to the consumers. Thus, considering that there are limited colours, a monopoly over a single colour is the main point of debate as it would result in a loss of creativity.

Conversely, many designers argue that monopoly over a particular colour only stops other designers from using the same colour in the same manner. For instance, in Louboutin’s case, his monopoly over the red colour sole only prevents other designers from using a deceptively similar red colour for the sole of the shoes. Competitors can use a different colour in a similar or different manner. But, for a colour mark to obtain trademark protection, it must prove that it has acquired a secondary meaning through long use. Owing to the short life of trends and style, it becomes difficult for colour to be protected under the pretext of acquired distinctiveness. Further, in earlier days fewer colours were available and therefore the available colours remained long in the market, forming a deep symbolic association with a particular product. But with a myriad of colours available now, association with colours have become weak.

Using colour mark adds distinctiveness to designs and limit other designers from copying or selling their goods on other’s goodwill. While competitors may argue that colour should not be granted protection due to limited colours appealing in all seasons, in some cases the colour depletion theory does not apply due to a myriad of colours coming up. Further, the colour depletion theory is less likely an argument because of the ever-changing colour trends. A colour is protected only when it is consistently used by the designer in all seasons and is identified with the brand satisfying the condition of acquired secondary meaning and association with the designer.

India’s take on the Grey Market in the Fashion Industry

With increase in demand for luxury brands in India, the fashion market is becoming a paradise for knockoffs, counterfeits, and the grey market goods. Grey market is a parallel market where authentic brands are sold at lower prices by unauthorised sellers. In other words, genuine brands are bought from one market and imported and sold in another market without the consent of the owner of the brand. Grey market goods are readily available at discounted price online, questioning the brand exclusivity. Their growing prevalence in the Indian fashion market cause serious impediments in the growth of the fashion industry. In India, many online stores already sold apparels and accessories from companies like Abercrombie and Fitch, Aeropostale and so on even before these companies had opened stores in India. [1]

Awareness and collaboration of the brands with local authorities are helping to tackle this pricky situation efficiently. Courts and other related authorities are gaining the required expertise and knowledge to develop a robust IP jurisprudence to tackle and help brands in trademark infringement. Christian Louboutin v. Nakul Bajaj & Ors[2] is a notable case where the Delhi High Court granted protection to Cristian Louboutin stating that the brand would suffer grave loss if injunction was not granted. The plaintiff filed a suit against the defendant stating that the defendant sold the plaintiff’s luxury products on their website by misrepresenting them to be affiliated or sponsored or approved by the plaintiff. The plaintiff claimed that there was a infringement of the trademark and end of the opulence and exclusivity enjoyed by the plaintiff on it’s products because of their display on the defendant’s mark. Courts understand the need to protect the brand with alacrity and rapidly gaining confidence and expertise in doing so.

Hermès v. Da Milano[3] is another example where the courts showed their expertise in dealing with grey market goods and protecting the plaintiff against trademark infringement. The court granted preliminary injection to Da Milano from selling handbags that resemble the Hermès’s Birkin Bag. However, later the two parties settled the case outside the court where the plaintiff allowed the defendant to sell their handbags without the legally protected element i.e. the ornamental or decorative part of the plaintiff’s handbag viz a horizontal belt and flap having three protruding lobes.

The Indian government and courts are working to curb the problem if not eliminate it. Though the courts are ready to tackle problem of counterfeits and the grey market goods, it is important for the brand to be vigilant about the unauthorised trade of their products. One cannot simply ignore the fact that sometimes these high-end luxury brands themselves directly sell their good to the grey market players or turn a blind eye to such sales to boost their sale revenue. This is done to improve short term results and unload the excess stock. The proprietors of these well-known brands should avoid such practice for short term results and be more prompt in acting against the grey market players and counterfeits to avoid dilution of their well-known marks.

[1] Business Standard, https://www.business-standard.com/article/companies/india-s-online-grey-market-for-us-clothing-brands-112080400101_1.html 25th January, 2013

[2] Christian Louboutin SAS v. Nakul Bajaj & Ors., CS (COMM) 344/2018

[3] Ranjan Narula, Mayur Varshney, ‘Countering Counterfeits’ , 25^th December 2017 https://www.legaleraonline.com/article-detail?newsname=countering-counterfeits

IPR: LOOPHOLE IN FASHION LAW?

Fashion, since its inception, has been a part of our social life, depicting the social status of the person. The fashion industry, generating billions of dollars each year, majorly focuses on creativity and intellect. As the industry prides itself on its tremendous growth, it is becoming a breeding ground for unauthorized and rampant copying of designs. Designers and fashion houses are becoming more and more aware of their IP rights to protect their design and business. However, with knockoffs and counterfeits taking the front seat, it is evident that the IP rights provide only limited legal backing to the fashion industry.

Copyright law is the most obvious kind of intellectual property law to protect creative works like books, paintings, sculptors, and song lyrics but not useful items like clothes and accessories. Copyright does not provide a monopoly over useful items like clothing. In other words, it protects the creative elements (like pictorial, graphical, and structural work) of the design of clothes, accessories, or footwear and not the functional elements. Also, copyright law protects fashion designs provided they are not registered under the designs act, but the protection expires if the design is reproduced more than 50 times.

Other than copyrights, trademark law protects the name and logo of the fashion brand which provides much-needed protection to businesses. However, the trademark only protects the name and not the designs of the apparel, footwear, or accessories. While trade dress protection under trademark law could provide the desired protection to underlying designs or shape size and overall look of the product, it is not a well-developed area of law in India. Further, to be protected by trade dress protection, the product must either have acquired distinctiveness or inherent distinctiveness as in the case of Christian Louboutin SAS Vs Mr. Pawan Kumar & Ors.[1] Since the criteria for protection is so high, only high end and well-known brands can be protected under this area of intellectual property rights.

Further, while considering the fashion industry, patent protection does not come immediately come to the mind. Nonetheless, patent protection can be granted to the technology used to reach a particular product. For instance, Novozymes, a Danish company has patented the technology used to attain stonewash jeans.[2] But, patent protection can be very expensive and time-consuming thus not a feasible option for fashion houses since the industry is based on quick-changing trends and seasonal wear. Moreover, in India, design patent protection is unavailable.

These individual loopholes when taken together, aid in fashion design piracy and copying. Fast fashion retailers take advantage of these loopholes to generate billions of dollars each year and are rarely sued for the same. The case Ritika Apparels v BIBA is an example of how big well-established fashion houses like BIBA take advantage of these loopholes and escape liability. The smaller fashion houses and designers suffer due to the existing loopholes in IPR and lack of funds to receive the same. The most feasible solution would be to introduce a custom made fashion law to reduce the plight of fashion houses and designers.

[1] Christian Louboutin SAS v. Mr. Pawan Kumar & Ors, High Court of Delhi, CS (COMM) No. 714/2016

[2] WIPO Magazine, ‘IP and Business: intellectual property in fashion industry’ Issue 3/2005

Tattoos- Copyright Protection v. Fundamental Human Rights

The practice of body graphics and tattoos have existed from time immemorial. With the constant metamorphosis of technology and art forms and the emergence of new industries like the tattoo industry has raised the question of whether the current legal framework is prepared to effectively govern this budding industry? With a lack of explicit law relating to tattoos and the dearth of judicial precedents, there is a perplexing contradiction between who owns the tattoo and the fundamental freedom of an individual.

To begin with, in India, tattoos can be protected by copyrights under artistic work provided they satisfy the statutory conditions that are ‘original work’ and ‘fixed in tangible medium’ (in this case a human). A proof that tattoos are copyrightable was given by the Indian Copyright Office by registering the tattoo of the letter ’D’ in the name of Shahrukh Khan, for his film Don 2 in 2011.[1] Thus, a tattoo design can be protected by copyright, provided it shows sufficient originality and is fixed on a medium. Though there are no cases of disputes relating to copyright infringement in India yet, the S. Victor Whitmill Vs. Warner Bros’ case[2] threw light on the issues relating to the protection of tattoos. Warner Bros were sued by the tattoo artist from Missouri for the unauthorized use of Mike Tyson’s tattoo in the movie Hangover II. Though the case was settled discreetly, the question who owns the tattoo and who shall reap its benefits continues to persist.

Under the Indian Copyright Law, the owner of the copyright is the author of the work (in this case the tattoo artist). As the owner of the copyright, the tattoo artist has the right to exploit his work and to communicate the piece of work to the public. This could imply that the tattoo artist will control his artwork which would include the medium on which the tattoo is fixed, that is a human, which would violate the freedoms provided under Article 19 and 21 of the Constitution. For instance, in the Whitmills case, if the sole rights of communicating to the public or exploiting the work were vested in the tattoo artist, the professional boxer Mike Tyson would have to quit appearing in public or appear with his half face covered. For such celebrities, who derive income from public appearances, it would be against the fundamental rights to freedom as well as impact their earnings.

Furthermore, as the owner of the tattoo, the artist enjoys moral rights like the right to integrity that is the tattoo artist can restrict the tattoo bearer from altering, modifying, or doing anything prejudicial to the tattoo artist’s reputation. This would potentially have a negative impact on the human rights of the tattoo bearer. Thus, though the copyright law is well codified, it is quite ambiguous when it applied to the tattoo industry. Complete protection of tattoo artist will have dire consequences on the human rights of the tattoo bearer, while completely denying their rights would discourage the tattoo artists from displaying their creativity. Extending the scope and meaning of the law for example extending the definition of work for hire and a strong precedent to protect and execute the rights of the copyright holder without violating fundamental human rights could help solve the issues pertaining to the tattoo industry.

[1] Indian Express, http://archive.indianexpress.com/news/srk-registers-don-2-tattoo-in-his-name/817871/ 15 July 2011

[2] S. Victor Whitmill Vs. Warner Bros., Civil Action No. 4:11-cv-752

JioMeet versus Zoom

Video conferencing apps like ZOOM, Google Meet have come to the rescue of the public who are distanced from their near and dear ones owing to the pandemic and social distancing. With such apps gaining popularity, Reliance Jio launched its own app JioMeet as a direct rival and an Indian alternative to Zoom. With an all-time high zeal to achieve “Atmanirbhar Bharat”, JioMeet has made a timely launch in India. However, with the launch of the app, came a controversy that the user interface of JioMeet was the exact copy of Zoom. Several Twitter users highlighted that it was a screen imitation of Zoom. In a statement issued to the media, Zoom India Head Sameer Raje, mentioned about being in talks with their legal team regarding the possible legal action against JioMeet.[1]

JioMeet, like Zoom, supports HD audio and video conference call, scheduling meetings, adding up to 100 participants, and screen sharing. A closer look at both the applications showed that except for the font and the colour combinations, the app uses the same phrases, icons, and designs as the Zoom app.[2] With such uncanny resemblance, the question arises that whether JioMeet infringes on the copyright of Zoom.

Under the Indian Copyright Law, computer programs, computer software or operating system that is a set of instructions expressed in words, codes, schemes, or any other form are protected. There is no explicit clarity on whether it protects the user interface. However, the Ministry of Electronics and Information technology provides an interpretation that helps to solve this confusion. It states that:

“Copyright protects the form of expression and can be used to protect source code and the object code of a computer program. Furthermore, the computer program is protected as a literary work by the Indian Copyright Act and hence, the look and feel of Graphical User Interface (GUI) can be protected under the Copyrights.” [3]

However, despite the protection, the mere presence of icons would not be protected as they can simply indicate the function of the application. Copyright law does not protect mere ideas but protects the expression of the idea. Thus, the way in which such icons are arranged or the way they are related and connected to different elements of the application or the design encoded in a program for the efficient functioning of Zoom is protected by copyright.

On a detailed study of the graphical user interface, JioMeet is a literal imitation of the protected elements of Zoom with a few cosmetic changes. An expression of idea will violate copyright law if it is an exact imitation of the original with minor changes.[4] Except for minor changes in the font and colour combinations, the text and arrangement of the features are almost identical. An ordinary man on viewing both the apps is likely to be confused and be under an unmistakable impression that JioMeet is a copy of Zoom, which is infringement.[5] Hence if Zoom files a copyright infringement suit against JioMeet, it will hold a stronger stand and even though JioMeet has made new changes, this will not absolve it of its liability for infringement.

[1] Kritti Bhalla, ‘Reliance JioMeet could face legal action over copy pasting Zoom, 9^th July 2020 https://inc42.com/buzz/reliance-jiomeet-could-face-legal-action-over-copy-pasting-zoom/

[2] Kritti Bhalla, ‘Reliance’s JioMeet ridiculed at Launch for copy pasting Zoom’, 3rd July 2020 https://inc42.com/buzz/reliances-jiomeet-ridiculed-at-launch-for-copy-pasting-zoom/

[3] Ministry of Electronics and Information technology https://www.meity.gov.in/content/copyright

[4] Amartya Bag, ‘Copyright Violations In Cyberspace- Offences and Protection’, September 4 , 2014 https://blog.ipleaders.in/copyright-violations-in-cyberspace-offences-and-protection-mechanisms/#:~:text=The%20general%20rules%20of%20copyright,constitute%20violation%20of%20copyright%20law.

[5] R.G Anand vs M/S. Delux Films & Ors [18 August, 1978 AIR 1613, 1979 SCR (1) 218]