As new media and means of advertising emerge, static advertising rules must try and regulate an extraordinarily dynamic industry; the piquancy of new media which puts paid to traditional gentlemen’s agreements for restraint from offensive and inaccurate content is among the greatest challenges of the law at present.
Advertising standards in India are prefaced on a combination of industry-adopted standards, laws governing various media, sector-specific laws and the consumer protection framework.
The Advertising Standards Council of India (ASCI) is the nodal, self-regulatory body, comprising members from industry, advertising and market research, purposed with maintaining honesty, trust and fairness in advertising. Ever more, however, industry regulators like the Telecom Regulatory Authority of India (TRAI), Securities and Exchange Board of India (SEBI), the Insurance Regulatory and Development Authority (IRDA) and the Food Safety and Standards Authority of India (FSSAI) too have begun to actively prescribe advertising standards within their influence.
The main function of advertising is to boost a product or a service in the public perception. With innovative products and new technologies emerging constantly, companies need to carefully ensure that the use, marketing or sale of their product is not hindered due to legal non-compliance.
The firm’s services include wholesome advice, preventive and curative, on aspects of advertising and product liability to ensure regulatory compliance, advertising audits, strategic opinions on packaging and labelling issues, representation before advertising and metrology bodies, and prosecution of product disparagement and false advertising actions in courts and tribunals. Among our clients are media and entertainment establishments, e-commerce marketplaces, publishing firms, financial institutions, hospitality and consumer electronics companies.
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The product labelling and packaging regime makes incumbent the metric system as the standard of weights and measures in India and defines the testing, calibration and accreditation of metric- administering bodies; it also governs the packaging and sale of goods utilising such measures.
The Legal Metrology Act, 2009 and Legal Metrology (Packaged Commodities) Rules, 2011 provide for standardisation of packaging and labelling in India, and define the labelling requirements of all commodities manufactured, imported and sold in the country. Albeit to a lesser extent, common law too has shaped packaging and labelling requisites, notably for food and beverage packaging.
The Food Safety and Standards Authority of India (FSSAI) has assumed a very proactive role with a stronger law being in place. Responsively, the firm has developed a specialty practice in legal metrology which extensively advises domestic and foreign enterprises on packaging requirements in the consumer goods, electronics and automotive industries, among others. (Read more about firm’s advertising laws practice here)
The team conducts audits of clients’ labels to ensure compliance with prevailing laws and undertakes project-based research on compliance criteria for different industries under the legal metrology law apart from advising on risk and mitigation. Significantly, FSSAI has signed a MoU with the Advertising Standards Council of India (ASCI) to keep tabs on misleading advertisements in the food and beverages sector. Therefore, producers and importers need to be aware of two pairs of regulator eyes on their product packaging and labelling.
The firm also assists in regulatory compliances such as registration as importer/manufacturer, registration of labels, and nomination of directors. We represent clients before legal metrology authorities for guidance on compliance and in cases of notice for non-compliance with packaging and labelling requirements.
Alternate Dispute Resolution
Its obligations under the United Nations Commission on International Trade Law and home-grown arbitration, mediation and conciliation regime have made Indian jurisprudence an effective purveyor of alternate dispute resolution.
Alternate Dispute Resolution (ADR) methods preface significant advantages over formal legal proceedings, not least of which is speed and cost effectiveness. They also permit legal and procedural flexibility, and are preferable for preservation of commercial relationships.
Courts in India have long recognised the benefits of ADR and actively encourage parties to resolve or, at the very least, narrow down their disputes that would otherwise be adjudicated before them in whole. In fact, recalcitrance in appointing arbitrators or stymieing arbitral or mediatory efforts usually incur judicial ire and courts frown upon dilatory tactics.
Well versed with the wide variety of mechanisms for dispute resolution, the Firm has been committed to supporting ADR techniques as and where appropriate, and is at the forefront of applying fast-track commercial dispute legislation.
With decades of experience in ADR, the Firm is attitudinally and practically equipped to handle both court supervised and out-of- court / private mediations and other dispute settlement mechanisms. In addition to this, our extensive litigation experience gives us a unique perspective of the factors that lead to successful ADR outcomes. The Firm is fully involved in ADR practice and is consistently building its expertise in the field, being involved in some of the largest ADR cases in intellectual property in India and has seen a high percentage of successful outcomes.
The ubiquity of international standards has promulgated Standard Essential Patents. SEPs have for their part enabled interoperability and cost effectiveness unheard of with proprietary technologies.
Broadly, ‘Standards’ are technical specifications that describe the standard design/ technology involved in a product or process. Some better known examples are the 2G, 3G and LTE standards propounded by the European Telecommunications Standards Institute (ETSI) enabling global interoperability of cellular services; the Institute of Electrical and Electronics Engineers’ 802.xx interface for communication; physical specifications for optical media technology; and the International Organisation for Standardisation’s standard dimensions for most goods.
Often, standards are based on patented technology and those looking to implement the standard must license access to SEPs. Applications to that end must be evaluated for their essentiality, that is, whether the applicant has shown sufficiently that its implementation of the standard requires access to the protected invention.
The firm is the exclusive Indian representative empanelled with the International Patent Evaluation Consortium (IPEC) which has 26 law firms representing 23 jurisdictions, including China, Russia, South Korea, Mexico and many members of the OECD.
We assess the essentiality of a patent vis-à- vis the relevant standards: whether a claim pertains to the mandatory or optional aspect of the standard (claim chart mapping); identifying the category of product to which the claim is related, based on claim construction; and providing exclusive confirmation of essentiality with specific product category, if found essential.
Besides being an independent evaluator, the firm advises and represents leading SEP holding companies in several patent infringement actions where essentiality has been invoked and enforced using claim mapping vis-à- vis the relevant standards.
The protection afforded to plant varieties and farming communities reflects the importance of the agricultural industry in India and the need to balance commercial exploitation with sufficient agricultural output, innovation and benefit sharing.
India’s sui generis system of plant variety protection i.e. The Protection of Plant Varieties and Farmers’ Rights Act, 2001 introduces commercial exclusivity and recognition of plant breeders and farmers rights and contributions for conservation, improvement and making available of plant genetic resources. It reconciles also the reasonable sharing and disclosure requirements to meet agricultural demands, accelerate agricultural innovation, development and the needs of the populace. The Act is also unique for its overarching ambit of protection in that whole farming communities can avail of its provisions.
While protection of new plant varieties is for novelty, distinctiveness, uniformity and stability (DUS), novelty is not a criterion in the registration of an extant variety and this form of protection is unique to India. Commensurately, DUS testing involves subjecting plant varieties to repeated propagation to ensure uniformity across yields and verification of traits and characteristics distinguishing these from existing varieties.
Plant breeders and farmers can avail limited protection under the Act and registration grants exclusive rights to produce, market, sell, distribute and even import or export the variety. The duration of protection depends on the plant variety.
The firm makes representations for its clients before the Protection of Plant Varieties and Farmers’ Rights Authority, National Green Tribunal and the High Courts. Our team with relevant domain knowledge and experience, monitor progress at DUS testing centres and raise concerns before the Authority. The team has the expertise to handle all the matters from filling, prosecution, contentious and enforcement related issued involved under the Act.
Art and antiquities law may neither be a separate jurisprudence nor a unified legal doctrine, yet its multidisciplinary nature leverages many aspects of legal protection in the regulation and facilitation of the creation, and the use and marketing of art.
The creation, ownership and transfer of art and antiquities conceives myriad legal concerns, including valuation, sale and transfer of property, and civil and criminal liability. Theft, counterfeiting and damage, in particular, are pervasive themes in the art world; and legal resolution is beset by conflicting claims, inconclusive documentation and application of archaic law.
Additionally, housing art collections privately or with museums and galleries, and repatriation of national treasures lost during India’s colonial dominion under the British present their own legal intricacies.
Our copyright team advises on a variety of issues including intellectual property, contracts, constitutional rights, torts, commercial and international law, with an emphasis on mitigation of legal risk. The team has a deep understanding and perspective of the distinctive nature of the arts community and is equipped to give advice and provide solutions for its challenges and meet its expectations of the law.
The Firm seeks to be an outstanding resource for the art world, governmental and non-governmental organizations, as well as creative entrepreneurial businesses in need of art law expertise and legal counsel. We interact with a wide range of stakeholders in the arts, antiquities and cultural heritage space, including government, embassies, galleries, museums curators, artists, art collectors and universities.
Protecting intellectual property in the fashion industry requires continual efforts, but begins with the will of the designer; a strong and deliberate claim at the earliest stage of creation will make it easier and more effective to enforce rights in the marketplace.
Much of the fashion fraternity relies on protection afforded by copyright that subsists automatically in artistic works. While copyright law affords adequate protection for aspects such as concept drawings, moulds and sketches, irrespective of artistic quality or craftsmanship, it can be insufficient in and of itself to pursue an effective legal remedy if the final product is sold on a commercial scale. A fault line in the copyright law makes something which is at its inception an artistic work fall outside the scope of copyright protection if it was also registrable as a design but not registered as such and reproduced in excess of 50 times.
Registering intellectual property as trademark, trade dress or design has the potential to provide an additional layer of protection. Permutations of patterns, ornamentation and even material choices may suffice for claiming such protections, and as a best practice must be explored before the design is publicised or hits the shelves.
The Firm advises and represents domestic and international designers, fashion establishments and retailers, and engages proactively with the fashion community to educate it on the simple steps needed to protect intellectual property and enhance brand value and support commercialisation.
With contractual and commercial expertise including advising on employment and commercial contracts to safeguard intellectual property and trade secrets, in conjunction with full legal support in customs law, litigation and enforcement, effective deterrence against counterfeiting and fashion piracy is made a practical reality.
Ever since the liberalisation of the economy in the 1990s, franchising has become a mainstay for foreign investors looking to establish their presence rapidly in India. With the flexibility it offers, franchising can be a very effective means of achieving economies of scale, while also benefitting small scale entrepreneurship.
In the absence of a special law, franchises are governed by the law of contracts, therefore, a well drafted franchise agreement is all important. As franchising requires the franchisor to entrust its rights in the trademark, trade dress and / or products, and their reputation, to the franchisee for commercial use, intellectual property, contract and industry-specific laws all play a significant role.
Franchising is prevalent across many industries and the firm represents a large number of domestic and international clients in retail, hospitality, medicine, beauty and healthcare, automotive, education, real estate, and luxury and apparel sectors.
The firm provides essential services of drafting franchising agreements and maintains an ongoing engagement in the franchise community. Our teams are skilled in the finer nuances of brand management, international business and retail operations, enabling them to render practical and business friendly solutions to clients.
INDUSTRY SPECIFIC KNOW-HOW
The Indian regulatory environment has been welcoming of foreign investment, but remnants of a bygone planned economy remain. The firm’s extensive involvement in franchising helps our clients avoid pitfalls such as compulsory sub-licensing of technical know-how in certain industries. The firm has been empanelled by the Government of India to assist in the drafting of franchising laws and we have also worked in close association with the British High Commission and the embassies of the USA, Spain and Italy to introduce franchising opportunities in India.
ENGAGING WITH THE FRANCHISING COMMUNITY
The firm has an ongoing engagement in the franchise community and is a knowledge partner with the Franchising Association of India (FAI) in annual events and workshops for franchisors, franchisees and entrepreneurs. The firm conducts training sessions to familiarize different industries such as education and retail with the position of the law.
The firm provides comprehensive legal services for franchisors and franchisees. We help clients choose and develop a franchise model; draft franchise manuals; assist in partner searches and tie-ups; draft and vet contracts; conduct due diligence; and make representations to the Ministry of Commerce. Our teams are skilled in the finer nuances of brand management, international business and retail operations, enabling them to render practical and business friendly solutions to clients.
Biological diversity has been recognised as a fragile and finite resource susceptible to loss from human activity. Countries have in recent years endeavoured to safeguard natural resources against unsustainable and unfair use or commercial exploitation.
India enacted the Biological Diversity Act, 2002 to implement the Convention on Biological Diversity. The legislation reiterates the basic premise of the Convention: to conserve biological diversity, and sustainably so; respect controlling rights over natural resources and discoveries; and promote fair and equitable sharing of benefits derived from utilisation of biological resources, knowledge and matters ancillary. India became an associate member of the Global Biodiversity Information Facility in 2003.
Essentially, the Act introduces a framework for conserving, controlling access and sharing benefits arising from any access of biological resources of India by any person or entity. Any access to India’s flora and fauna requires prior permission from the National Biodiversity Authority (NBA), a statutory autonomous body with headquarters in Chennai, which performs facilitative, regulatory and advisory functions for the Government of India on issues of conservation, sustainable use of biological resources and fair and equitable sharing of benefits arising out of the use of biological resources.
The firm’s biodiversity practice brings depth of experience and expertise of our specialists in the field. We advise and assist domestic and foreign clients for obtaining approvals and making representations before the NBA, State Biodiversity Boards and other Committees formed under the Act. Our attorneys further represent clients in the approvals processes before various forums and courts, including the National Green Tribunal.
With sports becoming multi-billion dollar enterprises and athletes becoming brands unto themselves, the commercial implications for all involved are enormous. And the potential for consumers to be deceived doubly so.
Patronage and advancement of sports and sportspersons was until quite recently reliant on government funding and programs but, happily, sports other than those traditionally seen as commercially viable are increasingly finding private investment. Commercial interest in sports has manifested for the most part in broadcast, sponsorship, merchandising and licensing, and intellectual property typically signifies a large part of the value. The hierarchical structure in a large number of sports bodies, from the sportsperson to the sporting club and the governing association, adds complexity to control and monetisation of brands and merchandise.
Given the unique interaction between sporting leagues and the sporting framework, non-adherence to or variation in sporting code has the potential of affecting business models and livelihoods. Though India has an amalgamated National Sports Development Code to regulate the constitution of sports federations and prevent doping, national sports legislation is yet to be codified.
The Firm represents a cross-section of the sporting fraternity, including national and international sports management organisations, sportspersons, sporting leagues and sporting foundations. Our practice is informed by all perspectives of the sports industry, be it broadcasters, governing bodies, right holders, brands and sponsors, agencies or athletes and we provide services for anti-ambush marketing strategies, sponsorship, brand acquisition and syndication, merchandising and licensing. The Firm also engages actively with the government and stakeholders in the sports community in policy decision-making and has provided input as amicus towards future sports legislation.