IPR in the Internet age: Justices Gautam Patel, Prathiba Singh discuss "IP colonialism", spreading word of India's pro-IPR stance and more

Justice Gautam Patel of the Bombay High Court and Justice Prathiba Singh of the Delhi High Court on Sunday made interesting remarks on the need for reciprocity in recognizing and protecting Intellectual Property Rights (IPR) across global jurisdictions in the internet age. .The Judges were speaking in a webinar on "Internet Infringement Impacts: Transborder Reputation & Jurisdictional Issues in IPR", hosted by the Hidayatullah National Law School, Raipur and the CAN Foundation. .The welcome address for the event was given by Professor VC Vivekanandan, Vice-Chancellor of HNLU, Raipur. The session was moderated by Senior Advocate Chander Lall and R Parthsarthy, Partner and Head of the IPR and Tax Division at Lakshmikumaran & Sridharan Attorneys..Watch the full session here:.On the need to counter "IP Colonialism".In the internet age, a physical or local presence of a brand is not necessary for it to be known, it was noted. However, whether this would be sufficient for a court to recognise its reputation as meriting the protection of IPR, was a matter of discussion..Going by previous Indian rulings, Justice Patel pointed out that Indian courts have readily acknowledged the transborder reputations of international entities and protected their IPR in India.."But have our counterparts overseas been as welcoming of our (Indian) brands?" was the lingering question. .Justice Patel went on to observe,."What we seem to be facing now is some form of IP colonialism or imperialism, where our brands, no matter how reputed, how well-built, do not acquire and do not get the necessary recognition overseas. But we, on the other hand, are expected - and these are the demands made on us in Court - to recognise and acknowledge overseas brands. There is an imbalance between us and overseas brands. And it is time we made some steps towards protecting our own brands overseas. "Justice Gautam Patel.Justice Prathiba Singh commented that this was an issue that should be tackled at an international-policy level and by spreading more awareness about how Indian courts have been in favour of protecting IPR. .She opined that there is a need to highlight these issues with policymakers dealing with the WTO, USTR etc. "so that Indian businesses are able to protect their brands and marks internationally with the same kind of principles Indian courts have laid down to protect foreign marks.".She emphasised that the way forward is not for Indian courts to become more regressive. Rather, she opined that there should be efforts to educate the global community on how India has been in favour of protecting IPR. She explained, ."I don't think Indian judgments get enough exposure internationally. Even data from India is not exposed internationally. The first step that the IP community in India has to do is to write more, collect more data on the completely pro-IP approach Indian courts have.... publish and make a robust ecosystem where we can publish India's achievements for the global community. Instead of our courts becoming more regressive, I think we should do what we think is right, which is what we have been doing the last 30-35 years."."We do not need to look backwards ourselves, we need to make them (foreign jurisdictions) look a little forward. Give them the data, the judgments to show - look at how Indian courts are treating your brands, please give the same reciprocity to Indian brands as well."Justice Prathiba Singh.The case for specialised Intellectual Property Divisions in High Courts.Among other sub-themes the Judges also mused on why they were not inclined towards the setting up of specialised Intellectual Property Tribunals. .Given the high stakes involved in IP litigation and the huge ramifications it may have, and in the interest of maintaining consistency, Justice Patel opined that the High Court should be the first court of instance when it came to such cases. ."This would be a huge difference to the practice of IP law and consistency in IP law across the country", Justice Patel said..Referring to such systems being in place in several jurisdictions in South East Asia, Justice Singh added, "I would tend to agree that tribunalisation is not the answer. But what could be the answer is specialised IP divisions, which would deal with IP appeals from district courts, cancellation petitions, revocation petitions, writs against the Trademark office and original jurisdiction and appeals... IP Divisions in all High Courts is something I would recommend. That would bring about consistency, we could have specialised experts.".In this regard, she pointed out that Japan, for instance, Intellectual Property examiners and controllers are posted in a special IP Divisions to help the IP Judge on technical matters. Thereby, there is a communication channel between the IP Division of the Court and the IP office. .Adding to this proposal, Justice Patel also called for Judges who may be tasked in IP Divisions to voluntarily undergo training so that they become accustomed with the latest developments in IPR..He said, ."I think, in these dedicated IP Divisions, Judges should agree - I'm not saying 'should be forced' - to go into training seminars vocationally, as students because I would very much like to learn from people like Partha and Chander and Professor Vivekanand - what are recent trends, what are the thoughts, what are the criticisms - what are the ways forward...Otherwise, we are constantly just stumbling, trying to keep up.".On the need for transborder IPR recognition in the Internet age.The discussion also saw Justice Patel touch upon the need to break away from the traditional notion that the reputation of a brand, its "use" and, consequently, its protection, should tie with a physical presence. .He queried, "Is the insistence on local presence for reputation and its counterpart, use, now just a relic of a bygone, pre-internet era - one that should now be given a proper and decent burial?".On this aspect, he remarked, "The internet defaces traditional, geographic boundaries. They cease to matter. They are increasingly irrelevant and in some cases obsolete.... The internet has demolished the Berlin walls of law. In the context of the reputation of trademark, this impact is just as vigorous... brands are now recognised even where the branded products are not physically available.".In such a context, Justice Patel was openly critical of the UK Supreme Court's 2015 ruling in the case of Starbucks (HK) Limited & Anor v British Sky Broadcasting Group PLC & Ors, wherein a Hong Kong-based brand lost a case alleging that its mark "NOW TV" was being passed off by a British broadcasting company. .Whereas UK consumers may have been exposed to the Hong Kong entity and aware of its presence, it did not have a physical or a local presence in the UK. This, the UK Court took as indicative that the Hong Kong brand did not have any goodwill among UK consumers, thereby leading to the dismissal of its case. .Responding to a query posed concerning the case, Justice Patel remarked, "In 2015, for any court anywhere in the world to approach the matter as if the internet as a way of doing business did not exist. This is not a judgment of 1975 or 1985 or 1992. This is a judgment of 2015. I mean, for God's sake, even England is not doing business like this any more. It is terribly isolationist.".Remembering Professor Shamnad Basheer for his monumental contribution to IP law and more.The event also saw both Justices Patel and Singh remembering late Professor Shamnad Basheer, a pioneer in Intellectual Property Rights. .Justice remarked that, "Shamnad made the kind of contributions few are able to do in lives lived twice as long. There was his monumental contribution to IP law - an area in which he and I had the opportunity to engage... and, dare I say it, to spar with each other as well.".Justice Patel lauded Professor Basheer's initiative, Increasing Diversity by Increasing Access (IDIA) which works to erase massive inequalities and inequties in the practice and profession of law. On Sunday, Justice Patel also announced that he is going to launch a book, the royalties of which will go entirely to the IDIA..Justice Gautam Patel to launch book on Fundamental Rights and Free Speech, royalties to go to IDIA.Speaking on the articles written on SpicyIP, which was referred to as Professor Basheer's second legacy, Justice Patel said, "I find them to be engaging, perceptive, intelligent and certainly worth taking into account. That is his second legacy, and it is one that will endure..".On an anecdotal note, Justice Patel recounted, "There was a time when, I remember, he was very angry with me. Despite, our respective positions, he did not hesitate in letting me know just how angry he was. But when I pointed out that his ire was entirely misdirected and that there was a misunderstanding, he immediately stepped back. That spoke simultaneously of both his courage and his intellectual integrity - two values which I perceive to be increasingly in danger today.".Justice Prathiba Singh also commenced her remarks by remembering Professor Shamnad Basheer as a close colleague.."His contribution is not measurable by any standard", she said.