Netflix and IP – The Rise and Rise of the OTT Platform Globally
In 2007, when Netflix switched from being a DVD rental store to providing online streaming services, the over-the-top (OTT) media service was considered a joke. How could online streaming compete with cable TV? But today, OTT platforms like Netflix, Disney+, and Amazon Prime Video have changed how the world ‘watches TV’!
While Netflix built an empire out of couch potatoes glued to the platform, it is also an intellectual property (IP) powerhouse, with a portfolio that covers content creation techniques to user experience enhancements and data analytics. This article is an attempt to provide insights into the fascinating world of Netflix’s IP.
Netflix’s copyrighted content
Copyright protection is granted for the original expression of an idea through literary, artistic, dramatic, and musical works, as well as mechanical rights in the form of cinematograph films and sound recordings. For example, by creating and owning the rights to hit shows like “Stranger Things” and “Orange is the New Black,” Netflix can control the entire lifecycle, from production to distribution.
As early as 2008, Netflix obtained a year-long license from the then Starz Media (now Starz Distribution) to stream 1,000 movies on its platform, including, “Pirates of the Caribbean, At World’s End”, “Spider-Man 3”, and “Ratatouille”. Netflix also has exclusive agreements with Universal Filmed Entertainment Group and Sony Pictures Entertainment to stream their movies. Netflix India has gained licenses to stream regional content in India such as RRR, Gangubai Kathiawadi, etc. to increase its regional user base.
Draft Trade Marks (1st Amendment) Rules, 2024
The Department of Promotion of Industry and Internal Trade (DPIIT), under the Ministry of Commerce and Industry, Government of India, has notified the draft Trade Marks (1st Amendment) Rules, 2024 (draft Rules) and invited public suggestions and comments before February 9, 2023.
The draft Rules introduce two prospective provisions, Section 112A and 112B, to the Trade Marks Act, 1999 (Act) by Item 30(D) of the newly enacted Jan Vishwas (Amendment of Provisions) Act, 2023 along with related procedural guidelines. Additionally, also it suggests incorporating three new forms, namely Form: TM-D, TM-OPP and TM-DA, into the Second Schedule of the Act.
The key proposed amendments in the draft Rules include:
- Filing of Complaint (Form TM-D): Any person may file a complaint using Form TM-D against a false representation trademark under section 107 of the TM Act. [Rule 105A]
- Quashing and Dismissal of the Complaint Summarily: If no prima facie case for the maintainability of the Complaint has been made, the complaint shall be quashed and dismissed by the appointed Adjudicating Officer. [Rule 105B & 105C]
- Summary Proceeding: In a prima facie case, the alleged violator is served a notice and a complaint, and must respond with a written submission on Form TM-OPP within 15 days from the date of the issuance of the notice. [Rule 105D (a) & (b)]
- Manner of Holding Inquiry: A show cause notice shall be issued to the alleged violator and thereafter a final order shall be passed within 60 days. The draft proposes that while adjudging the quantum of compensation, three factors should be taken into consideration: (a) the amount of gain of unfair advantage, wherever quantifiable; (b) the amount of loss caused to any person; and (c) the repetitive nature of the default. [Rule 105D (c)]
- Time-Period Extension: The time period for responding to the show cause notice can be extended on showing sufficient cause and the payment of fees. An adjournment order may also be passed at the hearing. However, the proceeding must be completed and the penalty or compensation must be imposed or awarded, respectively, within 90 days. [Rule 105D(d)]
- Appeal: Aggrieved parties can appeal, using Form TM-DA within 60 days of receiving the order, accompanied by a fee of INR 5,000 (~ USD 60) in favour of the Appellate Authority. [Rule 105E]
- Registration and Disposal of Appeal: General rules as to registration, admission and serving a copy of the appeal shall be followed. The responses need to be filed within 21 days, extendable by another 21 days. The hearing will be scheduled no earlier than 30 days after notifying the parties about the same, shall be fixed for hearing the appeal and on which the Appellant Authority may pass any order including an order of adjournment. [Rule 105F & 105G]
- Procedure in Appeal: The Appellant can plead on other grounds also, not specified in an appeal if the omission was not wilful or reasonable. The Appeal shall be heard and decided within 60 days from the filing date, where possible. One adjournment may also be granted to the parties. Further, the appeal may be disposed of ex-parte also, however, this order may be set aside and the appeal may be restored, not beyond 1 year, on showing sufficient cause of the absence by the opposite party. [Rule 105H]
Stakeholders are invited to submit their suggestions or objections to these rules by February 9, 2024. To share your suggestions and comments with us, please reach out directly to your K&S Partners contact by February 3, 2024.
Requirements for inventive step Life Science and Pharma patents
Requirements for inventive step in India along with common patent eligibility issues in Life Science and Pharma patents
India has been on an upward growth trajectory for the last two decades, which has led to its slow but steady transformation into a knowledge driven economy that now has increased focus on quality research and innovation. This, coupled with India being one of the largest consumer markets in the world, makes for a perfect battleground where patents become important tools to not only distinguish oneself from competitors, but to also become market leaders.
Inventive Step in India
Patent protection in India is governed by The Indian Patents Act, 1970 (the Act) that amongst others, provides Sections 2(1)(j) and 3, that define an invention in India and enlist subject matters that are outside the purview of patent eligibility in India, respectively. Put together, these 2 sections form the most important technical provisions that determine whether an invention can be successfully protected by way of a patent in India or not.
Intellectual Property and biodiversity: interplay – Future Science Article
The review article focuses on Biological Diversity Act, 2002 vis-à-vis Patents Act, 1970 of India with intricacies involved thereunder.
Potentially divergent objectives and thereby obligations under the Convention on Biodiversity and Trade-Related Aspects of Intellectual Property Rights Agreement are also reflected in respective domestic legislations in India. The review article focuses on Biological Diversity Act, 2002 vis-à-vis Patents Act, 1970 of India with intricacies involved thereunder. Authors have analyzed the obligations under these domestic legislations. The article goes on to make a few suggestions to aid effective implementation of both the statutes. The scope of this review article is limited in two aspects; first, it speaks only about Indian landscape and second, it discusses about interplay of biodiversity law only with respect to patent law instead of all the domestic Intellectual Property enactments of India.
The IPAB abolition: Insights from India – Asia IP Law Publication
When the Intellectual Property Appellate Board was suddenly abolished in April, lawyers across India were taken by surprise. Espie Angelica A. de Leon finds out just what lawyers are thinking of its abolition in this eulogy to the IPAB.
When the Intellectual Property Appellate Board was suddenly abolished in April, lawyers across India were taken by surprise. Espie Angelica A. de Leon finds out just what lawyers are thinking of its abolition in this eulogy to the IPAB.
For India and other countries, an IP waiver is a distraction
For India and other countries, an IP waiver is a distraction not a solution to the covid-19 vaccine crisis
Drawn-out discussions about a covid-related TRIPs suspension will not help the huge numbers of people in India and elsewhere waiting for vaccines, argue Deepa Tiku and Jyoti Sagar of K&S Partners
As the world wades through the second year of the deadliest pandemic in living memory, we are all fighting a common invisible enemy: the novel coronavirus SARS-CoV-2.
Coming to humanity’s rescue, scientists from around the world have worked round the clock to develop, within an unprecedented timeline, several vaccines to battle the virus. According to data published by the WHO, a total of 102 novel coronavirus vaccine candidates are under clinical development and another 185 are in pre-clinical development. Many vaccines have already been deployed around the world and the latest statistics available from ourworldindata.org indicate that more than 2 billion people have already been vaccinated. This is no mean feat in such a short time.
Yet, there is a glaring gap in the vaccinated populations between the developed world and the rest. While the United States has inoculated more than 65% of its citizens, some of the least developed countries (LDCs) have yet to begin their vaccination programmes.
This brings to fore the raging debate on vaccine inequity, and rightly so. After all, how can anyone be safe until everyone is safe?
Misleading Advertisements and Trademarks – A Registration Conundrum
K&S Partners and The Advertising Standards Council of India (ASCI) have recently released the report "Misleading ads and trademarks - a registration conundrum" which investigates how brands use misleading claims as trademarks and deceive consumers.
Consider a case where a descriptive trademark like ‘ALL WOOL’ has been permitted for a clothing brand. To an average consumer, this would connote that the products sold by the brand contain 100% wool. Now, if such clothes contain only 20% wool, this would cause the consumers to be deceived. The Trade Marks Office, allowing the use of a term like “All wool” as a trademark, might not always carefully review the technical accuracy of the message.
These are some of the challenges faced in the protection of consumers from misleading representations. Advertisements are undoubtedly the most powerful tool that impacts consumer behaviour – they must therefore be responsible!
The Code of Self-Regulation issued by the Advertising Standards Council of India (“ASCI Code”) requires that advertisements should be truthful and honest. The Consumer Protection Act, 2019 (“Consumer Protection Act”) similarly requires advertisements not to be misleading.
Entities often register descriptive or laudatory words, slogans, etc. as trademarks. Some of these trademarks are incorrect and/ or misleading as they represent unsubstantiated characteristics, nature, quality, or quantity of the product. When objected to by ASCI, entities rely upon their trademark registrations as a defence.
In this light, questions arise about whether descriptive/ laudatory marks can be registered as trademarks, and whether the prohibition under the ASCI Code and the Consumer Protection Act not to make false or dishonest claims in advertising applies to registered trademarks.
The Challenging Pursuit of Patent Claim Amendments in India
The provisions in patent laws which provide for claim amendments, play a critical role in maintaining the patent ecosystem. In India, Section 57, read with Section 59(1) of the Act governs amendment of claims.
Amendments to patent applications are a regular feature of patent prosecution worldwide. From requiring the title to conform with claims in India, to conforming the whole description in Europe, different jurisdictions have their own requirements. However, since claims determine the value of a patent, it is important that claim amendments are treated with caution. It is essential to ensure that the language of claims which get granted, is in sync with the business objective of a patentee. This post reviews the practice of allowing amendments in claims of a patent application by the Indian Patent Office (IPO) and looks at some of the gaps that may need to be filled.
Amul wins infringement case in Canada
The Court also awarded Amul, the eighth largest milk processor in the world, with damages in the amount of CAD32,733 (US$26,049).
The Federal Court of Canada ruled in favor of Amul, a famous homegrown dairy brand from India, in a trademark and copyright infringement case in the North American country.
The victory marked Amul’s first win in a trademark infringement case outside India. It was also the dairy company’s first time to file such case against a company in another country.
The Court also awarded Amul, the eighth largest milk processor in the world, with damages in the amount of CAD32,733 (US$26,049).
The Kaira District Cooperative Milk Producers Union Limited and the Gujarat Cooperative Milk Marketing Federation (GCMMF), which markets the Amul brand, filed a case against Amul Canada after discovering in January 2020 that the latter copied the “Amul” trademark and logo of “Amul – The Taste of India.”
The trademark and logo were used in a fake LinkedIn page of Amul Canada.
According to Amul’s counsels, Amul Canada and its four employees included in the suit, are neither licensed nor allowed to use the former’s trademark and logo.
The four employees, namely Mohit Rana, Akash Ghosh, Chandu Das and a certain Patel, created the fake LinkedIn profile.
“Amul is considered as the pride of India. Its journey from a cooperative movement to becoming a well-known global brand began decades ago. It is no surprise then that Amul’s tagline is also ‘The Taste of India’ and hence, people associate Amul as being a national brand. Its little girl mascot has immensely added to the brand’s reputation with all the quirky topical commercials having social and political overtones,” said Safir Anand, senior partner and head of trademarks, contractual & commercial IP at Anand & Anand in Noida.
GCMMF has been exporting the flavoured milk Amul Kool, ice cream and dairy snacks to Canada for the past two years. Amul products are also being exported to the US, Australia, New Zealand, Japan, Hong Kong, Philippines, Thailand, Afghanistan, Sri Lanka, among others.
“Hence, it is not a surprise when violators tend to piggyback upon this repute/goodwill and it is very likely that there may be many more battles for such well-known brands like Amul to fight,” Anand added. “Thus, the increased globalization of trade has made the protection of famous and well-known marks even more crucial.”
K&S Partners are contributors in the second edition of ‘International Copyright Law
Copyright law in India is governed by the Indian Copyright Act 1957 (the Act), as amended from time to time.
The most recent amendments to the Act came into effect on 4 April 2021 through the Tribunals Reforms (Rationalization and Conditions of Service) Ordinance 2021.
What can be protected?
The expression ‘work’ is defined under Section 2(y) of the Act to mean any of the following works:
- a literary, dramatic, musical or artistic work;
- a cinematograph film; and
- sound recordings.
These works are described in more detail at section 2.3 below.
In addition, the Act protects the ‘broadcast reproduction right’ and ‘performers’ rights’ through an amendment introduced in 1994.
What are the criteria for protection?
Under Section 13 of the Act, copyright subsists only in the following classes of works:
- original literary, dramatic, musical and artistic works;
- cinematograph films; and
- sound recordings.
To claim protection under the Act, the works (other than foreign works and/or works of international organisations) specified in Section 13 of the Act must meet the following conditions: