In this fast paced world where everything can be indexed, why not innovation? Before we jump into understanding the concept of Global Innovation Index, let us first review what exactly is innovation? It is the process of translating an idea or invention into a good or service that creates value for which customers will pay. Innovations transform the way we communicate, travel and live our daily lives.

The Global Innovation Index (GII), 2018 is in fact the 11th edition of its kind. The GII is co-published by Cornell University, INSEAD and WIPO. The GII Report ranks the innovation capabilities of world economies. The 2018 report ranks 126 economies which approximately represents of 90% of the world’s population and about 96% of global GDP. The Innovation Index helps to recognize the key role of innovation which enables economic growth and prosperity. It is interesting to note that the GII not only counts merely innovations but also driving factors of innovations such as level of research and development.

The question that arises here is how exactly can one calculate factors such as research and development? Well, the GII considers 7 major activities which enable these factors to grow, such as: (1) Institutions, (2) Human capital and research, (3) Infrastructure, (4) Market sophistication, and (5) Business sophistication, (6) Knowledge and technology outputs, and (7) Creative outputs. The analysis of these varied factors leading to GII rankings further helps industries and companies to tie up with entities of such countries displaying a high GII.

Having stated in brief the relevance of GII, let us now have a look at the top 20 countries listed as per the GII, 2018:

Most experts were surprised with USA dropping out of the top 5 positions. It is however commendable to note the progress of China making it to the top 20 list. India too has shown a rise by 3 positions coming up to 57 as reflected in the GII, 2018. One of the most remarkable growths that one can observe is that of Israel coming up by 6 positions worldwide.

In addition with continuing businesses with varied countries, we would definitely recommend indulging in business with Israeli companies considering their impeccable performance in the past year.

The concept of a Geographical Indication has its origins in the Paris Convention for the Protection of Industrial Property in 1883 and is also covered under the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). However, India adopted the Geographical Indications of Goods (Registration & Protection) Act in 1999, which came into force in September 2003.

What exactly is a GI Product?

Well, a GI product is primarily an agricultural, natural or a manufactured product, which includes handicraft and industrial goods that originate from a definite geographical territory. It is an intellectual property right given for a product traditionally grown or made in a particular region, which makes it illegal for someone else to sell a product from elsewhere under that name. India being rich in culture and diversity brings out a range of flavours which are special from all over the country. A GI protection is given to an association of makers or growers of the product or an arm of the state or Central government which may apply on their behalf.

India and GI:

As on today, India has about 320 products which have been conferred upon with the Geographical Indication status. The state which tops the list with the maximum number of GI’s is Karnataka with 38 GI products, followed by Maharashtra having 32 products and Tamil Nadu with 25 products. There are many products in the market that have gained a GI status, to name a few, the world famous Darjeeling Tea, Tirupati Laddu, Kashmir Pashmina, Nagpur Orange, Mysore silk, Feni from Goa, Nashik Grapes, etc.

In addition on July 30, 2018, the famous Kadaknath chicken meat from Jhabua district of Madhya Pradesh has got a Geographical Indication (GI) tag.

What’s New?

The Commerce and Industry Minister Suresh Prabhu launched the all new Geographical Indication logo and tagline which will be featured on all products that have gained the status of a GI. The whole idea behind formulating a logo and a tagline is to raise awareness about IP rights among people for which the Ministry is making considerable efforts every now and then.

Is there a Multilateral Register for GI?

The protection required under the TRIPS Agreement is defined under two articles:

Article 22, which defines a standard level of protection and says geographical indications have to be protected in order to avoid misleading the public and to prevent unfair competition.

Article 23 provides an enhanced level of protection for geographical indications for wines and spirits: subject to a number of exceptions, they have to be protected even if misuse would not cause the public to be misled.

Currently there exists a multilateral register that covers only Article 23. The member countries of TRIPS are yet to come to a consensus with regard to the applicability and enforcement of the Multilateral Register with relation to goods under Article 22.

*We claim no rights over the above images. This picture has been used solely for information purposes.

India is now party to the WIPO Copyright Treaty (WCT) and WIPO Performers and Phonograms Treaty (WPPT). Both the treaties were concluded in 1996 and entered into force in 2002. Let us get a gist of both these treaties.

The WIPO Copyright Treaty (WCT): The WIPO Copyright Treaty is a special agreement under the Berne Convention that deals with the protection of works and the rights of their authors in the digital environment.

Rights Conferred through the treaty:

• Computer programs in any mode or form of their expression

• Compilations of data or other material ("databases"), in any form, which, by reason of the selection or arrangement of their contents, constitute intellectual creations.

(NOTE: Where a database does not constitute such a creation, it is outside the scope of this Treaty.)

• The right of distribution

• The right of rental

• A broader right of communication to the public.

WIPO Performances and Phonograms Treaty (WPPT): This treaty deals with the rights of two kinds of beneficiaries, particularly in the digital environment:

(i) Performers (actors, singers, musicians, etc.);

(ii) Producers of phonograms (persons or legal entities that take the initiative and have the responsibility for the fixation of sounds). These rights are addressed in the same instrument, because most of the rights granted by the Treaty to performers are rights connected to their fixed, purely aural performances (making them subject matter of phonograms).

Now performers are classified in two classes

•  Fixed Performers (fixed in phonograms, not Motion pictures): Economic Rights such as, the right of reproduction, the right of distribution, the right of rental and the right of making available.
•  Unfixed Performers (live performers): the right of broadcasting (except in the case of rebroadcasting), the right of communication to the public (except where the performance is a broadcast performance) and the right of fixation.

The Treaty also grants performers moral rights,that is, the right to claim to be identified as the performer and the right to object to any distortion, mutilation or other modification that would harm the performer's reputation. The Producers of phonograms share the same rights as that of fixed performers.

Limitations and Exceptions for WCT and WPPT: Article 10 of the WCT incorporates the "three-step" test to determine limitations and exceptions, as provided in Article 9(2) of the Berne Convention.

•  Three-step test: Article 9(2) of the Berne Convention states that:

It is the responsibility of the legislation in the countries party to the treaty to permit the reproduction of such works in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author.

The duration for protection for WCT and WPPT is at least a period of 50 years.

Thus, the protection of work in the digital environment and performers rights will now be enforceable with more efficiency and on par with the 96 countries party to the mentioned treaties.

Traditional litigation has witnessed inordinate delays due to the time taken and expenses incurred. In order to facilitate this process, Mediation has seen a considerable rise especially due to its speedy disposal and amicable approach.

Mediation is preferred since it is a non- binding process i.e. the parties retain the right to accept or decline the settlement offer at the end of the process. Mediation is a voluntary, party-centered and structured negotiation process of resolving issues which has gained immense popularity worldwide and is ever increasing in its demand.

How is Mediation helpful?

Mediation accelerates the process of solving the issue between two conflicting parties. It maintains an amicable, dignified and civilized relationship for future interactions between such parties as both parties voluntarily agree to a common ground. Results are achieved in a shorter span of time. The Code of Civil Procedure, 1908 inserted Section 89 via an amendment in 2002. This section authorizes the Court to convert a civil suit into ‘outside court form of settlement’ in cases where the scope of settlement is visible. This clearly displays the propagation of Mediation.

In a recent decision passed by the Delhi High Court in Turning Point vs. Turning Point Pvt. Ltd, August, 2018, the Division Bench expressed its view that the Appellant and the Respondent should ideally have negotiated their differences by the method of mediation and agreed to co-exist. This particular view by the Divisional Bench clearly marks the rising importance of Mediation as a successful Dispute Resolution method.

Pre-Instituted Mediation: Further in May, 2018, the Government of India introduced the Commercial Courts, Commercial Division and Commercial Appellate Division of High Court (Amendment) Ordinance of 2018, with the purpose of making pre-institution mediation mandatory before filing a commercial dispute under the Commercial Courts Act, 2015 (the “Act”). This was inserted as Section 12A which compels the parties in an ongoing commercial dispute under this Act to be referred to Pre-Instituted Mediation under the Legal Service Authorities Act, 1987 with an exception that the dispute is of urgent matter and requires interim relief. The time period allotted for the completion of this process of mediation is three months and can be extended up to a period of another two months with the consent of the parties.

Implication of the Limitation Act: It is important to note that if the parties are undergoing mediation under this Act, then the mediation period has to be excluded from the calculation of the limitation period under the Limitation Act, 1963.

If the parties reach an agreement, it shall be binding and have the same effect as Arbitral Award under the Arbitration and Conciliation Act, 1996, therefore cannot be disputed unlike a usual Mediation Process. The inclusion of the above mentioned ‘Mediation Specific’ section clearly brings to spotlight the increasing demand and success rate achieved by Mediation.

In November 2017, the Delhi HC held that, the formulation of Mediation and Conciliation Rules, under the CPC, is not only restricted to civil suits but also for mediation in matters referred by the court concerning Criminal Cases as well as proceedings under S.138 (Cheque Bounce cases) of the Negotiable Instruments Act.

Requisites for Mediators: There are no binding regulations in India for qualifications of Mediators. However, as per the guidelines laid down by the Mediation Training Manual of India by the Supreme Court a minimum a forty hours course must be completed by the mediators. This course covers the following aspects: the theory of mediation, role-playing/demonstrations of mediation proceedings as well as shadow mediations that one must complete under a trained mediator. The curriculum also includes the history of mediation, ethics of a mediator, role of judges, parties and advocates, types of mediation and conflict resolution. The format of the course as well as the curriculum includes topics that are covered by most internationally recognized mediation training programs.

As per Salem Advocate Bar Association v. Union of India, 2005, Judges and lawyers are not required to undergo a mediation course. However, the adverse methods in which Judges and Lawyers are trained to resolve disputes is likely to affect the essence of mediation in furtherance of which, the opinion to mandate such guidelines are awaited.

We too, believe that cases resolved by the means of Mediation have seen a higher success rate. Interestingly, Mediation method is not only successful in Commercial Disputes, Negotiable Instruments Act or IP infringement cases but in all kinds of disputes, including Family matters. So let us all adopt Mediation and agree to disagree!

Did you know plastic has been banned in 25 states of India to which Maharashtra and J&K are the latest additions to the list? Let us first simplify the multiple notifications released by the Maharashtra Government. The first notification that was released by the Maharashtra state government on March 23, 2018 did not consist of the definitions of ‘Multi Layered Packaging’ and ‘Paper based Carton Packaging using one layer of plastic’ (milk, juice, etc.), both of which were introduced vide the notification released on June 30, 2018. The banned products excluded plastic use for packaging of medicines, compostable plastic bags, and manufacture of plastic bags for export purposes in SEZ and export units. Further guidelines were released for plastic use which were integral parts of the manufacturing process such as:

• Thickness to be more than 50 microns

• Material to be made up of minimum 20% recyclable plastic. (except food packaging)

• Packaging material to be printed with the details of the manufacturer, buy back price and type of plastic code number.

The government initially had given out a time period of only ONE month to get rid of any plastic not within the norms, this time period was extended to 3 months i.e. the last day being June 23, 2018.

Reality check!!!

The plastic ban has not only led to immense confusion among consumers but also worried multiple manufacturers and retailers. The environmental friendly initiative would yield results only if the requisite substitutes had been available at reasonable prices. The people of the State are not only confused about the exact products banned but are also in a dilemma as to what is to be used as a substitute. The few suggestions proposed such as compostable plastic bags for garbage is not a viable option as it directly affects the basic house budget of many families. The ineffectiveness of the plastic ban is apparent with the results observed across the other states of the country.

Before we move forward, do we really know what exactly PLASTIC is? It is material, which contains as an essential ingredient a high polymer such as polyethylene terephthalate, high density polyethylene, vinyl, low density polyethylene, polypropylene, polystyrene resins, polystyrene (thermocol), non-oven polypropylene, multi layered co extruder, polypropylene, poly terephthalate, poly amides, poly methyl methacrylate, plastic micro beads, etc.

Whereas, ‘Compostable Plastic’ is plastic that undergoes degradation by biological processes during composting to yield CO2, water, inorganic compounds and biomass at a rate consistent with other known compostable materials, excluding environmental petro-based plastic, and does not leave visible, distinguishable or toxic residue, and which shall confirm to the Indian Standard: IS 17088:2008 titled as Specifications for Compostable Plastics, as amended from time to time.

What people are appearing to forget is that the term Plastic is broad enough to include polyester and fabrics made from fibres of polyester thus has also excluded non-woven sheets of plastic. By this definition the only packaging material left for the consumer/retailer is paper or cloth made from material such as cotton/linen/jute. , since most synthetic fabrics are plastic materials.

Is this a step in the right direction?

YES! It is surprising to note that many countries worldwide are battling the problem of doing away with plastic. It is imperative to understand the harmful effects of plastic use. It may sound monotonous and repetitive but it is for our own benefit.

Ever wondered what happens to the waste plastic? The waste plastic goes into land filling which affects the soil and has adverse environmental effects.

Did you know it takes about 500-1000 years for a plastic to decompose by itself?

If observed as to how other countries around the world have been implementing plastic bans it is interesting to take note that most countries began their ban by imposition of fines, increasing tax, pricing the plastic bags high so as to discourage people from buying plastic. Countries such as Kenya, England, Mexico, Rwanda, Ireland, France, EU are among the few who have successfully reduced the use of plastic by more than 60% with the use of these techniques. Sweden, known as the worlds’ largest and the best recycler, has adopted the mantra of ‘No plastic ban, more plastic recycling’, and successfully recycles its own plastic and in addition is now open to helping other countries to recycle. The amount of plastic that goes into landfilling from Sweden is a meagre 1%.

Thus, we can easily conclude that our government is going in the right direction and in fact is being responsible as it is on par with Countries like Canada and in fact ahead of countries like USA to help save the environment.

Other options/suggestions for the government for Plastic Disposal could be:

? Making of blocks or sheets from such accumulated plastic garbage

? Using plastic for road fills and road surface treatment, for example: plastic bottles could be filled with garbage and soil and could by itself act as a wall building material.

As a concluding note, let us all imbibe the mantra released by the United Nations Environment Program, ‘If you can’t reuse it, refuse it’.

We have multiple acts to protect Intellectual Property within the territory of the country. In addition, the Customs Act, 1962 u/S.11(2)(n) empowers the Government to prohibit import or export of goods if the protection of trademarks, patents and copyrights is concerned. The Customs Act also provides for confiscation of goods wrongfully imported/exported u/S.111 and S.113 respectively.

On May 8, 2007, the Government issued a notification (notification no. 47/2007) giving out the Intellectual Property Rights Enforcement Rules, 2007 which elaborated on the definitions of ‘Intellectual Property” u/R.2(b) and “Intellectual Property Law” u/R.2(c). Further, the Rules established the process for giving a Notice, registration of such notice, which shall request for the suspension of suspected infringing goods. The Rules also dealt with the conditions of registration, prohibition on imports of infringing goods, examination of goods by the IPR holder, supply of information to the right holder/importer, protection of the customs officers, are the gist of the available rules.

It is interesting to note that the IPR Rules has had interesting encounters with the court. The episodes began back in 2009, when Samsung filed a writ petition against the customs officer for barring the import of dual sim handsets into the country under the IPR Rules, 2007. The issue arising was, that Customs officers had the right to determine the patent legality of imports merely based on complaints registered by a patent owner without the consulting the importer of the goods.

Later, in 2012, Mr. Patel (Bharat Bhogilal Patel) filed a complaint against LG Electronics and multiple other importers for infringement. A circular was released by the govt. in 2009, which helped in the implementation of the IPR Rules, 2007. This circular addressed the issue of a Customs Officer not having the pre-requisite knowledge on Patents, Geographical Indication Infringements and design compared to Trademark and Copyrights. In order to deal with the infringements of the former kind, they should have been pronounced as offences by the court of law making the application by the Customs Officer simpler.

In order to deal with this, vide notification no. 56/2018, the Central Government introduced amendments to the IPR Enforcement Rules, 2007 and introduced the Intellectual Property Rights (Imported Goods) Amendment Rules, 2018. Now vide this notification, the Central Government has omitted the following:

• words ‘patent as defined in the Patents Act, 1970’ in R.2(b) which defines the term ‘Intellectual Property”.

• ‘The patents act, 1970’ in R.2(c) which defines the term “Intellectual Property Law”.

Thus, it can be concluded that the reason of the amendment has stemmed from the above cited cases thus relieving the Customs Officer from the pressure of identifying infringing goods.