India working towards disposing pending patent applications in the next two years

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Minister for Commerce and Industry, under which the Department of Industrial Policy and Promotion (DIPP) functions, has been taking several initiatives for substantive improvement of IP environment in India. The recent initiatives include comprehensive National IPR policy, relocation of Copyright Office to DIPP, merger of the Copyright Board with the Intellectual Property Appellate Board (IPAB), establishment of Cell for IPR Promotion and Management (CIPAM) and launch of Start-up Intellectual Property Protection (SIPP) scheme, among others.

Adding to the above initiatives, the office of Controller General of Patents, Designs and Trade Marks (CGPDTM) is making efforts to clear the backlog of about 2.3 lakh pending patent applications. DIPP has hired substantial number of examiners and is likely to dispose these pending applications in next two years. The introduction of expedited examination and the recruitment of around 450 patent examiners to add to the pool of existing 130 examiners at the Intellectual Property Office (IPO) is witness to such efforts of the DIPP. This recruitment has increased the speedy disposal of pending patent applications. In the year 2016-17, about 9,847 patents were granted by the IPO, as against 6,326 in the previous year. IPO has improved its count in issuance of examination reports, which has increased to 6,000 patent applications a month from the earlier 1,500 applications.

Suresh Prabhu, Minister for Commerce and Industry, while addressing the Leadership Summit on Anti-Counterfeiting and Brand Protection at New Delhi last month, highlighted the efforts and initiatives of DIPP and IPO to dispose off the pending applications at the earliest. He announced that the Ministry is working to come up with an effective plan by which patent applications will be disposed in the least possible time. These initiatives are expected to bring down the pendency of patent applications and targeted at final disposal of patent applications from the present 5-7 years to less than 18 months.

We welcome the initiatives and efforts of the ministry in establishing a strong IP regime, and more importantly a time bound one, which is likely to boost innovation in the country.

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India begins sharing search strategies in International search report

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International Searching Authorities (ISA) are appointed by the World Intellectual Property Organization (WIPO) for conducting prior art searches on Patent Cooperation Treaty (PCT) applications. There are currently 22 patent offices, including the Intellectual Property Office (IPO) of India, which are recognized as ISA. Applicants can choose from a list of ISA, typically based on their nationality. As an example, currently applicants from India and Iran can select IPO as the ISA.

ISA have the core objective of establishing International Search Report (ISR) on PCT applications. An ISR typically identifies one or more prior art references, categorizes the references based on their relevance, and may include a written opinion. However, among the 22 ISA, 6 ISA also used to include search strategies, which were used to conduct prior art searches while establishing the ISR. The IPO has now become the seventh ISA, which will be making public search strategies while establishing ISR.

In our view, sharing of search strategies is a wonderful initiative at least on three counts. Firstly, in the absence of search strategy, patent applicants had to blindly trust the ISR, and assume that the references cited in the ISR are likely to be the most relevant references. In the event of a poor quality ISR, an applicant may end up making investments into filing national phase applications, which may not get granted. Now that search strategies are being shared, applicants or their consultants may be in a better position to gauge the quality of ISR and take informed decisions.

Secondly, patent offices that subsequently receive national phase applications can examine the search strategies and calibrate their efforts. Additionally, examiners at national offices can build over the search strategies and avoid duplication of efforts.

Thirdly, and most importantly, the decision to share search strategies is particularly important from an Indian context. It may be worthwhile to acknowledge that India has significant backlog of patent applications, which are pending examination. In an effort to reduce backlog, the patent office has recruited a large number of examiners, who are fresh out of college, with very little experience in the patent domain. Sharing of search strategies in public domain has a psychological impact on examiners, and may be motivated to improve their work quality, and thereby end up establishing ISR are at least at par with patent office that are know for their superior quality of search.        

We welcome this initiative of the IPO that promotes transparency in terms of the work process and motivates examiners to perform at par with their global peers.

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India becomes part of WIPO’s Digital Access Service

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WIPO’s Digital Access Service (DAS) is an electronic system that allows easy transfer of certified copies of documents, which are typically required during filing patent applications in multiple countries. WIPO’s DAS allows applicant(s) to request a first patent office/office of first filing to make the certified copies available to other patent office’s/accessing offices where applicant(s) wishes to file the patent application. This certified copies exchange happens electronically between the patent offices. At present, there are nearly 20 patent offices that are using the WIPO DAS.

Considering recent events, a WIPO-India cooperation agreement was established between WIPO and IPO on 31 March 2018, stating that the IPO will now start using the WIPO’s DAS. IPO is now a depositing office, where the certified copies of documents are uploaded using the WIPO DAS.

The applicant(s) must make a request to the patent pffice stating that they require certified copies of documents to be submitted to the WIPO DAS. The request is made along with an applicable fee as per entry no. 49 in the First Schedule of the Patents Rules 2003. In case of Design Patents, the applicant(s) should submit Form 16 along with the applicable fee as per The First Schedule of The Designs Rules, 2001. Once the request is submitted to the depositing office, DAS sends an access code for authorization through email to the applicant(s). A separate access code is received for each certified document that the applicant(s) has requested from the depositing office. The applicant then sends a letter mentioning the patent application number along with the access code received through email from DAS to the receiving patent office(s). The certified copies are then successfully provided to the receiving patent office(s).

WIPO DAS is easy and quick as the system provides a mechanism for the office of first filing to add the certified copies of documents, and the accessing offices to receive the documents. The process is paperless, as the exchange between the patent offices happens electronically. DAS is secure as it’s hosted and administered by WIPO authorities. DAS is also reasonable in terms of cost as the applicant(s) need not pay for multiple sheets/copies of paper certified copies of documents. Also, WIPO does not charge the applicant(s) for using the system. Since all the exchange is done online, applicant(s) also save money on courier/postal charges. According to recent statistics, IPO ranks among top 20 countries for yearly numbers of PCT application filings. Hence, based on the above-mentioned details and statistics, IPO has definitely taken a wise decision in opting for WIPO DAS.

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Toyota Vs. Prius Auto – Analysis On Permeation Of Goodwill And Reputation Of Foreign Marks Into India And Passing Off Such Marks

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The judgment of The Supreme Court of India in the matter of Toyota Jidosha Kabushiki Kaisha Vs. Prius Auto Industries Ltd. & Ors is worth bookmarking for IP practitioners in India. The tussle between Toyota and Prius Auto has been going on since the year 2009. The initial matter concerned several trademarks, viz., TOYOTA, TOYOTA INNOVA and TOYOTA (device mark) and PRIUS. While the judgement (largely in favour of Toyota) of the lower court concerning the first three listed marks are not appealed in The Supreme Court, the judgment, which was in favour of Prius Auto and others (“Defendants”), concerning PRIUS, was appealed. The Supreme Court held in favour of Defendants, Prius Auto and others.

By way of background, the Defendants had obtained registration of the mark, PRIUS, in the year 2002, and has been using the mark since 2001. Toyota (“Plaintiff”) on the other hand launched the world’s first commercial hybrid car called Prius in Japan in the year 1997. In India however, the car was released in the year 2009, and the Plaintiff applied (as “proposed to be used”) for registration of the PRIUS mark on December 03, 2009, and followed it up with institution of suit against the defendants on December 21, 2009.

In the appeal, the Supreme Court set out to determine whether the defendants, by using the mark, PRIUS, to market the automobile spare parts manufactured by them, are guilty of passing off their products as those of the plaintiff, thereby injuring the reputation of the plaintiff in the market.

In order to address the issue at hand, Division Bench of the High Court considered two largely differing doctrines that have an impact on scope of trademark protection, viz., Universality Doctrine and Territoriality Doctrine. Universality Doctrine posits that a mark signifies the same source all over the world. In contrast, Territoriality Doctrine posits that a mark has separate existence in each sovereign country. In other words, under the Territoriality Doctrine, prior use of the trade mark in one jurisdiction would not, by that very fact, entitle its owner or user to claim exclusive rights to said mark in another dominion. The Division Bench held that Territoriality Doctrine holds, and the Supreme Court concurred.

In view of territoriality principle, the court had to determine whether there has been a spill over (by the time the Defendants started using the mark) of the reputation and goodwill of the mark used by the claimant who has brought the passing off action. The court considered the evidence, dated prior to first use of the mark by Defendants, supplied by the Plaintiff to assert spilling over of the reputation and goodwill of the mark to India.

The court noted that the car itself was introduced in the Indian market in the year 2009-2010. Further, the advertisements in automobile magazines, international business magazines; availability of data in information-disseminating portals like Wikipedia and online Britannica dictionary and the information on the internet, even if accepted, would not be a safe basis to hold the existence of the necessary goodwill and reputation of the product in the Indian market at the relevant point of time, particularly having regard to the limited online exposure at that point of time, i.e., in the year 2001. In view of these observations, among others, the Supreme Court agreed with the conclusion of the Division Bench that the brand name of the car Prius had not acquired the degree of goodwill, reputation and the market or popularity in the Indian market so as to vest in the Plaintiff the necessary attributes of the right of a prior user so as to successfully maintain an action of passing off even against the registered owner. The Supreme court further held that if goodwill or reputation in the particular jurisdiction (India) is not established by the Plaintiff, no other issue really would need any further examination to determine the extent of the Plaintiff’s right in the action of passing off that it had brought against the Defendants.

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Indian Patent Office stakeholders’ meeting and action taken

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The Office of the Controller General of Patents, Designs & Trade Marks (CGPDTM), which is commonly referred to as the Intellectual Property Office (IPO), periodically invites stakeholders to share suggestions and issues concerning the operation of the IPO. Typically, IP practitioners attend such meetings and share meaningful views and suggestions. The IPO has been receptive of these suggestions, and in many cases act upon them.

One such stakeholders’ meeting was held on December 07, 2017. Several issues were raised, suggestions given, and clarification provided in the meeting. Subsequently, the IPO has summarized the issues raised and suggestions received from stakeholders, and the response from the Office of the CGPDTM. The summarizing document can be downloaded 

A total of 116 issues and suggestions have been listed with regards to patents and industrial designs, and a total of 37 issues and suggestions have been listed with regards to trademarks. Some of the noteworthy issues and response from the IPO are summarized below.

There were issues concerning examination reports not being emailed to the correct email address. The IPO has been sending examination reports and hearing notices via email. However, there were instances where these reports and notices were not sent to the correct email addresses. The IPO has acknowledged occurrences of such errors and has begun reissuing examination reports and hearing notices to rectify the errors that have occurred previously.

In case of industrial designs, there have been instances where line diagrams of the industrial design have not been accepted, and examiners have insisted on photographic representations. The IPO accepts that, in-principle, photographic representations are not mandatory to be filed, and has requested stakeholders to cite specific cases where photographic representations are being sought.

Further, in case of industrial designs, at present response to the examination reports must be filed offline. The IPO has informed that portal for submitting responses to examination reports has already been developed and is in the process of being implemented. Hence, we can assume that provision for online filing of responses is just around the corner.

With regards to examination of patent applications, the Act and Rules have been amended to enable expedited examination in certain scenario. One such scenario is when the patent application is filed by a legal entity, which can be considered a start-up. However, we have received contradicting opinion from Controllers of the IPO with regards to whether or not a Non-Indian entity can be considered a start-up. We are of the opinion that a Non-Indian entity can be considered a start-up. We have previously submitted exhaustive arguments in support of our views, and had a patent application from a Non-Indian entity examined under the expedited examination provision by the virtue of the applicant being a start-up. The IPO has now clarified that, applicants, irrespective of country of origin, are eligible for expedited examination under rule 24 (C).

The stakeholder meetings being organised by the IPO has had a significant role in refining the operations of the IPO and standardization of views and opinions across Controllers and offices of the IPO. We welcome suggestions or issues our readers would like to raise with the IPO, and we shall consider raising them in the next stakeholder meeting.

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Justice Manmohan Singh Appointed Chairperson Of The Intellectual Property Appellate Board

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Intellectual Property Appellate Board (IPAB) is a tribunal that adjudicates appeals arising from decisions of the Controller General of Patents, Designs and Trade Marks (CGPDTM). The position of the Chairperson at the IPAB has been lying vacant since the retirement of the previous Chairperson Justice K M Basha in May 2016. Absence of a Chairperson, and the prevailing situation at the IPAB had resulted in substantial backlog, leading to the frustration among IP practitioners.

In this backdrop, the Department of Industrial Policy and Promotion (DIPP) had issued an advertisement on November 15, 2017, to fill vacant posts, particularly the posts of Vice-Chairman and Technical Members. The rules prescribed for such appointments have been embroiled in controversy, and we had expressed our views previously. Nonetheless, the Government of India has gone ahead and appointed Chairperson of the IPAB. However, we are not aware whether or not the rules mentioned earlier were applied for the appointment of the Chairperson.

The new Chairperson of the IPAB is retired judge of the Delhi High Court, Justice Manmohan Singh. Justice Manmohan Singh is currently Chairperson of the Appellate Tribunal for Forfeited Property (ATFP), and has been given additional charge of IPAB. Given the backlog at the IPAB, and the commitment required to dispose of pending matters, the dual responsibility given to the current Chairperson is a concern. Justice Singh is well known in the IP circuit, and has presided over several high-stake matters, including infringement litigation involving Ericsson and several India smartphone companies.

On behalf of Team InvnTree, we wish the new Chairperson the very best, and hope the appointment of the Chairperson is made in such a way that the appointment is not struck down in future as a result of the controversy mentioned earlier.

Banglar Rasogolla: a sweet (Geographical) Indication

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Geographical Indication (GI), as a form of intellectual property, has witnessed renewed interest due to the famous Indian sweet known commonly as “Rasgulla”. Until recently, GIs were in the shadow of their wider-known Intellectual Property family that comprises patents, industrial designs, trademarks and copyright.

GIs are a sign used on products that have a specific geographical origin and possess qualities or a reputation that are due to that origin. The GI tag assures the customer of the quality and uniqueness of the product due to its place of origin.

Coming to the GI grant for “Banglar Rasogolla”, the applicant is the West Bengal State Food Processing and Horticulture Development Corporation Limited (WBSFP & HDCL).

The examination report for the GI application raised several objections against the grant of the GI tag. The examiner submitted that the government may not be the applicant. Further, the examiner requested reports of the physiochemical and microbiological parameters of the product, along with its texture, viscosity and brix content in the syrup.  Further, the report suggested that the Association of Producers should be the applicant, with the West Bengal State Council of Science & Technology acting as a facilitator. The examination report asked for a logo of the GI product for better identification and protection of GI rights. The examination report also requested for the demarcation of the area of production of the product which indicates a map of the territory, region or locality wherein the product is manufactured.

The Applicant, WBSFP & HDCL, submitted a response for the examination report wherein it stated that it is an autonomous body registered in 1986 under the Registrar of Companies. It also stated that its main objective is to help in promoting the development of Food Processing Industries in West Bengal through support to entrepreneurs and artisans.

The Applicant also responded that it felt that the Association of Producers group is not capable of handling critical issues of GI registration and implementation. Hence, it chose to remain as the GI applicant, along with authorizing the Patent Information Centre of West Bengal State Council of Science & Technology for the filing and prosecution of the GI application for “Banglar Rasogolla”.

The Applicant collected samples from three shops in West Bengal and provided them to examining bodies for analysis. The Applicant submitted analysis reports that described the physiochemical and microbiological parameters of the “Banglar Rasogolla” that were provided by the West Bengal Public Health Laboratory, Kolkata. The Applicant also attached analysis reports of the texture and brix content (sugar content) of the sugar syrup, which was examined by the West Bengal University of Animal and Fishery Science, Kolkata. According to the reports, no starch was found to be added to the chhana (curdled milk) as an adulterant, thus ensuring the unique quality of Banglar Rasogolla. Further, the sucrose content of the sugar syrup was found to be within the range of 34-45% by weight. The “Banglar Rasogolla” was also found to be softer, with a soft texture and better chewiness when compared to Rasogollas originating from other states.

The Applicant submitted the logo and geographical origin of the “Banglar Rasogolla”. The Applicant also submitted that nearly one lakh shop keepers manufacture a total of close to two crore (twenty million) “Banglar Rasogolla” per day.

Subsequently, after submitting the response to the examination report, the GI for “Banglar Rasogolla” was granted to the WBSFP & HDCL on November 17th, 2017. News reports has cited a “feud” between two states over the GI for Rasogolla. However, it is to be noted that West Bengal received a GI only for “Banglar Rasogolla”, namely, Rasogolla from Bengal. Hence, other variations of Rasogolla originating from other states may still get a GI tag based on their product.

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“Barbie girl”: Mattel Trademark Infringement case

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The Delhi High Court was recently approached by toy-maker Mattel Inc. (the Plaintiff), the manufacturer of “Barbie” dolls. It had come to their notice that the makers of the Hindi movie “Tera Intezaar” had included a song called “Barbie girl” in their movie. Consequently, Mattel sued the producers of the movie for Trademark infringement of “Barbie” and requested the High Court for an ex-parte injunction to restrict the release of any version of the movie that includes the aforementioned song.

Mattel is the owner of the “Barbie” trademark in India for multiple classes of goods. The issue pointed out by Mattel in their allegation is two-fold. One issue is the alleged trademark infringement by the use of the word “Barbie” in the song. The second issue put forth by the Plaintiff is the alleged dilution of the Plaintiff’s “Barbie” trademark.

The Plaintiff alleged that their trademark was repeated multiple times in the song while the actress performed dance steps inspired by a Barbie doll. Further, the Plaintiff alleged that their trademark was included in the song merely to increase the commercial aspects of the movie. The Plaintiff also alleged that dilution of their trademark had occurred through the suggestive lyrics of the song, which feature an actress who is a prominent figure from the adult entertainment industry. The Plaintiff further contended that the contents of the song and its video are provocative, inappropriate and unsuitable for children, especially young girls, which has resulted in the tarnishing and degrading of the quality of the trademark “Barbie”.

The Plaintiff requested the Delhi High Court to grant an “in-camera” ex-parte hearing, wherein the case would be recorded instead of taking place openly. This request was refused by the Court on the grounds that ultimately, the dispute would become public and media reporting cannot be prevented.

The Delhi High Court also advised the parties to chill. This rather informal suggestion was replicated from a 2002 United States Court of Appeals judgement, regarding a similar infringement allegation of the “Barbie” trademark. This case involved the famous song “Barbie girl” from the Danish band “Aqua”. The Plaintiff, Mattel, had sued the Defendants, a music company, over allegations similar to the current case.

Initially, the United States District Court denied relief to the Plaintiff by reasoning that the use of the “Barbie” mark in the song was not an infringement of the toy manufacturer’s trademark associated with the doll. The District Court further stated that trademark rights do not entitle the owner to nullify an unauthorized use of the trademark by another entity who is communicating ideas or expressing points of view using the trademark. Further, the District Court stated that the trademark owner does not have the right to control public discourse merely because the public imbues the mark with a meaning beyond its source. Hence, the music company’s use of “Barbie” was not an infringement of the trademark. Upon appeal, the Court of Appeals requested the Plaintiff and Defendants to chill, or calm down in other words.

The Delhi High Court too stated the abovementioned matter. Further, it also quoted the Supreme Court’s decision in Nachiketa Walhekar Vs. Central Board of Film Certification as follows: “It is worthy to mention that freedom of speech and expression is sacrosanct and the said right should not be ordinarily interfered with. … An artist has his own freedom to express himself in a manner which is not prohibited in law and such prohibitions are not read by implication to crucify the rights of expressive mind. …. The Courts are to be extremely slow to pass any kind of restraint order in such a situation and should allow the respect that a creative man enjoys in writing a drama, a play, a playlet, a book on philosophy, or any kind of thought that is expressed on the celluloid or theater, etc.”.

Interestingly, the Delhi High Court also mentioned that granting an ex-parte order may send a wrong signal to the public at large. The Judge kept in mind on-going issues concerning another movies, which have been in the news recently over demands by one section of the society for banning it. Additionally, the Judge concluded the matter by stating that the plea may be considered at the notice stage. Thus, it remains to be seen what further steps are taken by the Plaintiff in this regard.

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Filling vacant posts in the IPAB – a double-edged sword

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The Intellectual Property Appellate Board (IPAB) in Chennai made an announcement on November 15, 2017, regarding filling up vacant posts. The positions are for a Vice-Chairman and for Technical Members for Trademark, Patent and Copyright.

The IPAB was set up for a speedy disposal of Intellectual Property disputes by transferring the jurisdiction of High Courts on certain matters to the IPAB. It is under the administrative control of the Department of Industrial Policy and Promotion (DIPP), which falls under the ambit of the Ministry of Commerce and Industry. The IPAB is responsible for hearing appeals from the decisions of the Controller of patents and trademarks, among others. The Technical Member of patents aids in adjudication of appeals against the decision of the Controller, and resolves patent revocations along with a Judicial Member.

On one hand, the filling of these posts will result in increased appointments for hearings and faster disposal of disputes that reach the IPAB. However, the filling of the posts may also turn out to be a double-edged sword due to current issues related to the appointment and removal criteria of the IPAB and other tribunal boards.

The crux of the issue arose when the Department of Revenue of the Ministry of Finance notified in the Gazette of India, the Tribunal, Appellate Tribunal and other Authorities (Qualifications, Experience and other Conditions of Service of Members) Rules, 2017. These Rules stated new processes for the appointment and removal criteria of persons in the IPAB and other Tribunal Boards.

As per the Rules, the selection committee for posts of Chairperson, Vice-Chairperson and Judicial Members of the IPAB consists of the Chief Justice of India or his nominee, Secretary (DIPP), a Secretary to be nominated by the Central Government, and two experts to be nominated by the Central Government. The selection committee for the posts of Technical Members (Trademark, Patents or Copyright) on the IPAB consists of a member who will be nominated by the Central Government to act as the Chairperson of the Selection Committee, Secretary (DIPP), a Secretary to be nominated by the Central Government, and two experts to be nominated by the Central Government.

As evident, the selection committee for the IPAB posts of Chairperson, Vice-Chairperson, Judicial Members and Technical Members comprises a majority of government-elected executives. Additionally, the removal criteria stated in the Rules places the power of removing the Judges of the IPAB into the hands of the Central Government.

The controversy lies in the fact that, despite the IPAB being a judicial body, the judiciary does not have a considerable role in appointments or removal of persons from the IPAB. The lack of judiciary independence in the running of the IPAB and other tribunals due to the Rules, has resulted in about six challenges before the Supreme Court and four challenges before the High Courts at Delhi, Madras, Bombay, and Gujarat regarding the same.

In past judgements, the High Court and the Supreme Court have repeatedly clarified that the selection committee for appointing persons to the IPAB must be balanced with members from the judiciary and executive, instead of a majority from the executive. Further, any Legislation that does not comply with this decision would be struck down as unconstitutional.

In Shamnad Basheer vs Union Of India, the High Court stated: “the selection process has been left entirely to the Executive, though the functions of the Tribunal are judicial. This act is a direct affront to the basic structure, which is fundamental to the Constitution of India. The 1st respondent has totally overstepped and acted in disregard to the law laid down by the Supreme Court in Union of India Vs R Gandhi, President, Madras Bar Association, [(2011) 10 SCC 1] by turning a blind eye. The directions issued therein are meant to be applicable to all the Tribunals…. It has been consistently held that the judiciary should have a substantial role in the selection. It was also held that the process of appointment should substantially be that of members of judiciary.

Thus, any appointments to the IPAB by the current selection committee according to the Rules would seem unconstitutional and may result in the subsequent overturning of the appointments. Further, since such appointments may be unconstitutional, the cases adjudicated by the appointed persons may face litigation from the involved parties that may allege injustice. Hence, the DIPP would be well-advised to carefully consider whether the time is right for making the appointments for the above-mentioned vacant posts in order to prevent further troubles.

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Relocation of copyright office to DIPP

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The Copyright Office recently announced the relocation of their office to Boudhik Sampada Bhawan, which is home to the Indian Patent, Trademarks and G.I. offices. It appears that the Copyright office has completed the physical and logical transfer to the Department of Industrial Policy and Promotion (DIPP).

The Copyright Office until recently was under the jurisdiction of the Human Resource Development (HRD) Ministry. However, the IPR policy released in May 2016 announced that the administration of the Copyright office was to be brought under the aegis of the (DIPP).

The DIPP was previously responsible for Intellectual Property Rights relating to Patents, Designs, Trade Marks and Geographical Indication. Hence, it seemed logical to consolidate the administration of all IP-related offices under a single administrative entity for uniformity in decision-making and administration. However, the real effects of this transfer on the Indian IP scene remain to be seen.

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