• For the first time in 6 years, FDI has declined in India by 1%. Also, Singapore has replaced Mauritius as the highest source of foreign investment in India. Other major investors include – the UK, Cyprus, the UAE, Germany, France, the USA and the Netherlands.

• As per the Forbes, top 10 world’s most valuable brands in order of ranking are: Apple, Google, Microsoft, Amazon, Facebook, Coca-cola, Samsung, Disney, Toyota, McDonalds of which 8 companies feature from USA, 1 from Korea and 1 from Japan. Further, not a single Indian brand is featured in the Top 100.

• The top 10 world’s companies in order of ranking feature: ICBC, China Construction Bank, J P Morgan Chase, General Electric, Exxon Mobil, HSBC Holdings, Royal Dutch Shell, Agricultural Bank of China, Berkshire Hathaway, Petro China and Bank of China of which clearly the majority companies belong to China and the others are from the USA, the UK and the Netherlands.

• A 79% drop was observed in M&A and Private Equity deals in the month of April compared to same month last year. Total M&A and PE deal value was at USD 4,579 million (about Rs 31,950 crore) in April 2019 against USD 21,766 million in April, 2018.

Germany has recently seen the implementation of a new law with respect to trade secrets. A trade secret of an organization means the classified information that the organization has to protect from the public at large and especially from its competitors. This information is vital for the smooth functioning of the organization and its disclosure is considered detrimental to the organization. It may include prospective business activities, clientele information, employee data, research and development by the organization, information regarding the organization’s association with other individuals or organizations, profit and loss statements etc.

In Germany, trade secrets were protected under the German Act of Unfair Competition Protection. However, for the implementation of the Directive (EU) 2016/943 of the European Parliament on the Protection Of Undisclosed Know-How And Business Information (Trade Secrets) Against Their Unlawful Acquisition, Use And Disclosure, Germany recently passed the Geschäftsgeheimnisgesetz (Trade Secrets Act, “Act”).

This Act defines trade secrets as “any piece of information that is neither generally known nor readily accessible, subject to reasonable steps to maintain confidentiality.” Not all trade secrets will now be considered Trade Secrets! For a trade secret to be protected under the Act, it has to qualify the requirements mentioned in the definition. With increased protection, comes increased responsibility on the part of companies. Now on, in case of trade secret disputes, companies seeking legal protection of their trade secrets will be required to place on record that appropriate and sufficient precautions were taken to protect the trade secrets from unlawful disclosure. The company will have to showcase that appropriate IT infrastructure has been set up for protection of the trade secrets.

The Act however, exempts whistleblowers, journalists, and other such investigators from the liability of unauthorised disclosure, if such disclosure is in the interest of the general public.

Washington recently passed the Act Relating to Restraints, Including Noncompetition Covenants, on Persons Engaging in Lawful Professions, Trades or Businesses, which shall be effective from January 1, 2020. The Act was introduced with the intent that there ought to be workforce mobility which is vital to the economic growth and development of the state. It seeks to protect employees from unreasonable non-compete clauses in their employment agreements. Non-compete clause signed by employees earning less than US $100,000 and independent contractors earning less than US $250,000 annually will be unenforceable once the Act is effective. Further, agreements wherein the non-compete provision are applicable for a duration exceeding 18 months will also become unenforceable.

It is noteworthy that the definition of a “Noncompetition covenant" includes written as well as oral covenants, agreements, or contracts with employees or independent contractors. The Act also requires the employer to disclose the non-compete provision before/ at the stage of acceptance of the employment offer by the employee.

The most vital function of a non-compete clause is to protect the trade secrets, intellectual property, proprietary information, clientele, etc. from being solicited by the competitor through unlawful means. The Act still grants this protection since the definition of a ‘non-competition covenant’ specifically excludes agreement/ covenants relating to non-solicitation, confidentiality, prohibiting use or disclosure of trade secrets or inventions, purchasing or selling the goodwill of a business, etc.

(Uhmm.. no, not what you think…)

AstraZeneca is a British-Swedish multinational pharmaceutical and biopharmaceutical company headquartered at Cambridge, UK, whereas Aurobindo Pharma Limited is an Indian pharmaceutical manufacturing company headquartered in HITEC City, Hyderabad. The company manufactures generic pharmaceuticals and active pharmaceutical ingredients.

AstraZeneca holds patent for the – Daliresp (trade name for Roflumilast). Daliresp is administered to curb inflammatory condition of the lungs.

Recently, AstraZeneca filed a petition at the US District Court of New Jersey, alleging that Aurobindo intends to launch a generic version of the Daliresp drug which is likely to violate their patent rights on 3 counts. The generic version of the drug though has been approved by the FDA maybe prevent them from being available in the market due to plausible patent infringements.

AstraZeneca in its case prayed for a permanent injunction, restraining and directing Aurobindo Pharma from indulging in making, using, selling, offering to sell, or importing any such product that infringes the patent rights of the company.

“Reiwa”, the new Japanese era was announced on May 1, 2019 marking the 126th accession to the throne by Naruhito, son of Emperor Akihito. Reiwa is interpreted as beautiful harmony or a culture being born and nurtured by people coming together beautifully.

*The image represents the launch of the “Reiwa” Era and has been used for reference purposes only. We claim no copyright over any aspect of the image

The Japan Patent Office (JPO) revised its guidelines which clearly stated that – era names cannot be used as Trademarks. The JPO faced this issue back in 1989, when the previous era, i.e. the Heisei Era was announced. The Office was flooded with trademark applications at the time and this has led the office to believe that a similar situation is likely to arise with the announcement of the ‘Reiwa’ era. Under previous guidelines issued, era names could be registered as trademarks, except Heisei. However, the revised guidelines ensure that trademarks do not feature any era name in principle, cannot be used for trademarks.

However, even after the release of the guideline, about 48 applications related to “Reiwa” were filed at the Japan Patent Office within three days of the announcement of the new era name. However, all of these are likely to the rejected.

Making the most of the situation, over 1,200 trademark applications have been filed for “Reiwa” related trademarks in China within a month after announcement of the new era. As per search results of the China’s Trademarks Office site, there was only one application in the name of Reiwa, filed in 2017 as opposed to the rise in number on present day displays a clear attempt by the Applicants to make the most of the new name. There are also multiple similar terms such as “Reiwa tenka”, “Reiwado,” “Reiwaya”, “Reiwa beef” and “Reiwa hall” filed across multiple classes for a range of goods/services. The Chinese Authorities are still considering whether or not to grant registrations to such filings.

UGG is an American Footwear Company and is a division of Deckers Outdoor Corporation, a footwear designer from California since 1973. However, ‘ugg’ is also a generic term used in Australia which refers to unisex sheepskin boots originating from Australia and New Zealand.

The issue cropped up in 2016, when an Australian ugg manufacturer sold 12 pairs of ugg boots to customers in USA and the description of the boots were displayed as ‘ugg’. Deckers instantly took cognizance of the case and initiated legal proceedings against the Australian manufacturer claiming infringement of the ‘UGG’ trademark and the design patent of its shoes. Deckers submitted that it has the registration of the UGG trademark in over 130 countries worldwide.

The jury in the abovementioned case awarded Deckers damages to the tune of USD 450,000, however, the two issues remains pending before the court,

- Did the Australian manufacturer willfully infringe upon Decker’s trademark?

- Is the mark ‘UGG’ enforceable keeping in mind the generic nature of the term?

Generic names are common words used in a certain lingo/country, as per Trademark laws, such words/terms cannot be registered as a trademark simply since one single person/entity cannot be the sole proprietor of a term used widely across a region! The word ‘ugg’ similarly, cannot be registered as a trademark in Australia as per the Trademarks laws of the country unless it is depicted as a logo. Thus, the public is free to use to use the term ‘ugg’ simply to describe sheepskin boots.

For example, the terms ‘lassi’, ‘khadi’, ‘namaste’ cannot be registered as a trademark in India since they are generic words used commonly amongst the public at large. However, if one of these words is registered out of India as a trademark, this would bring us to the question that would an Indian manufacturer/seller be held liable in such a country for using its own region’s generic term?! How can this issue be combatted? Maybe a law should be passed where persons using generic terms originating in their country are not liable to trademark infringement in other countries? Or is it just the responsibility of the individuals selling in foreign land to conduct a thorough search on whether or not the generic terms used by them are violating the rights of any third party?! What do you think?

We live in a generation that has an abundant sense of humour kept under wraps and an equal amount of sentimental intolerance on record!!

Sense of humor, jokes and innuendos are extremely subjective. The question is, is the government or the state machinery the sole custodian of measuring the obscenity, hurtfulness or immorality of expressions, in this case-Trademarks? Trademarks containing obscene content or those contrary to public policy or to principles of morality are generally refused registration in many jurisdictions. It has been reported that in Taiwan, a device of a man carelessly peeing with his hands in his pocket (“the device”) was sought to be registered as a trademark for a restaurant/ cafe.

Reportedly, the cafe was intended to provide a carefree atmosphere for customers to relax and the device symbolised the same. According to the applicant, the device was meant to depict a humorous character with a carefree spirit. The mark was refused registration on the grounds of obscenity. The applicant however submitted various reports, sales figures, customer reviews to showcase that the mark was well received and not perceived as obscene or immoral by its customers. This evidence made the trademark office reverse its decision, thereby allowing registration of the device.

Intellectual property is a dynamic industry considering its bedrock is the vast expanse of the human mind extending over the ages and eras of the past and the present. For a country that was known around the world for its brilliant intellectual capabilities, India has a lot of age old ‘intellectual property’ at every nook and corner of the country.

Thrissur Pooram is a famous festival in Kerala wherein one of the most famous temple art forms- Panchavadyam is performed. Panchavadyam is an orchestra consisting 5 instruments and originated as an offering to the deity in temples.

Recently, a movie Oru Kadhai Sollatuma also known as ‘The Sound Story’ was released. The film narrates the story of a sound designer who strives hard to realize his dream of recording all the sounds of the Thrissur Pooram.

The story is linear so far. The twist lies in the fact that the copyright in this movie ‘The Sound Story’ is owned by Sony Music. Hence, onlookers at the Pooram festival were restrained from uploading the Panchavadyam on Youtube. Since Sony Music, has copyrighted the music inspired by the Pooram festival, any other user uploading similar content was apparently infringing Sony’s copyright in its songs. Don’t become the devils you fight, they say. It is ironical for a movie that seeks to document the famous art form of Panchvadyam!! A lot of hue and cry is seen amongst the masses due to Sony’s monopolising a traditional art form.

Remember our story about Hakuna Matata, last month? Such incidents bring us back to the question of whether traditional knowledge, traditionally passed on art forms, creative innovations that metamorphosed through generations, are to be rightfully contained only by those that have the liberty and access to modern day IP frameworks? If it has been passed on between generations for ages together, don’t we owe its development and evolution to the intellect of all the generations that have contributed??

*The Panchavadyam instruments: The images used herein are only for representational and academic purposes and we do not claim any copyright in them.