The number of Covid-19 cases is increasing rapidly in the country. Currently, India is facing the 5th instalment of nationwide lockdown leading to shut down of many small businesses in various sectors which cannot sustain these hard times. The outbreak of the novel virus in the country has affected everyone from a rich businessman to a daily wage worker, and therefore, different governments are implementing different strategies and are releasing advisories to combat the virus.
In India, the government, under the Essential Commodities Act, have allowed the supply and availability of essential items to the general public for their survival. These essential items include food and other edible items, medicines and medical equipment, manufacturing and selling of which has been permitted by the Government. Although parts of India have opened up for businesses to start, the previous four lockdowns have majorly affected the business sectors. Therefore, in such scenarios, the chances of counterfeiting the goods increase as to sell them in the grab of the permit given by the government. Consequently, this research paper would talk essentially about Intellectual Property Rights (IPR), infringement and brand protection in the times of Covid-19.
When businesses are shutting down, the need to protect one’s brand becomes vital to a business owner, and therefore it is crucial to discuss the stand of IPR and the rights available to the owners against such infringements.
Going further in the paper, it is first important to understand how the current situation leads to the duplicity of goods in the market. Starting from the 1st instalment of the lockdown, the government permitted the supply of only essential commodities in the market. Furthermore, the companies were announced to be non-operational, which did not manufacture any essential commodity, and this had an adverse impact on the supply chain in the market. The suppliers of non-essential commodities in the market will make the best use of this situation, by selling goods which infringe the intellectual rights of some other supplier or party.
Since the first lockdown, the courts have shifted to work online and have decided to take cases which are of “essential” nature and are urgent. Therefore, this working of the courts adds up to the supply of infringed products in the market, as there would be almost no or late legal action against such suppliers.
As said above, IPR infringement and brand protection become an integral part of the current scenario. The entities or individuals in the market, could supply duplicate, infringed and counterfeit products in the market, whereby making malicious profits for themselves and further causing untoward losses to the well-established players in the market. As the lockdown is still there, this may prevent the big brands and the owners of the products from taking any strict action against such violators and counterfeiters. A common man cannot understand the difference between an original product and an infringed product, and the common man will keep buying things even if it is duplicate knowingly or unknowingly, and thus giving these infringers golden opportunity to produce such infringed goods.
This research paper is written in keeping in mind the view of the current situation, which is prevalent in the country, which is the nationwide lockdown and its effect on the Intellectual Property rights of an owner. The paper’s main objective is to throw light on how the Indian brands can take measures to protect the essential goods from infringement and duplicity as during the current times, safeguarding the essential commodities should be the first priority of any government.
Protecting the essential Products
As the government has categorised goods that fall under the essential commodities, the sale of goods which do not fall under this category has been impacted adversely. With the government rolling back its advisory issued for the sale of non-essential goods on online platforms, the counterfeiters may use this opportunity to flow their infringed products in the physical market. Due to the pandemic, the sales have been adversely impacted, and with no proper mechanism for this products in the market, the current situation is a one in a million opportunity for counterfeiters as well as infringers looking to pass off their products as originals.
This paper would like to evaluate the ways through which the brands can ensure safety and protection of these essential products, in these hard and challenging times for everyone. The following mentioned are some of the ways that can be taken brands which feel their product is being infringed.
- As some of the commercial activities have already started through the announcement of the 5th lockdown, once this pandemic is in control, as stated by the Ministry of Home Affairs, the employees of various brands can start immediately the internal standard operating procedures for verification of products, so that if there is any infringement or counterfeiting taking place, it is reported or controlled by the concerned authorities.
- It is crucial to know the different types of products and their originality in the market that has been sold and procured in the market through wholesaler, retailer, and distributor.
- The supply chain that is from the wholesaler to the retailer must be given instructions to regularly intimate the company of any infringements, and there should be proper helplines set-up to report such infringements.
- The mentioned helplines can also be used to provide important information about the product to everyone who is involved in the supply chain. It can also be used by the customers who want the authenticity of the product they are buying.
- The brands which are involved in the outsourcing of manufactured products should ensure that strict actions are initiated against those, who outsource in bulk quantity even in this times, which is a major reason for floating infringed products in the market.
- Proper markings and identification should be there on the products, which should ensure the originality of the product to the manufacturer. If in case, there is anything wrong that has been suspected in the products, evidence from the respected parties should be asked.
- Moreover, there are high chances that infringers might try to sell their product in the market through identical packaging, labelling etc. To combat this situation, it is important for the brands to keep an eye on their advertisements, promotions, unique selling proposition, and any other material which is capable of infringement.
- It is important to educate consumers and customers about brand loyalty. Awareness regarding the same can be spread through advertisements, promotions etc.
- It is additionally prudent that brands must be on the steady post for any new filings concerning the IP. Brands ought to likewise watch out on any such filings being done under a similar classification as well as a class so as to examine any Passing-off as well as encroachment that may happen during the lockdown time frame, and as needs are documented their restrictions before the concerned Registrar workplaces recording their resistance towards the award of any such IP rights.
- With so many new players in the market, it is evident that the trade-dress and designs of the well-established brands might get infringed easily. Therefore, it is incumbent for the brands to look out for design infringement so that the reputation and goodwill of the brands are not compromised.
- Further, it is likewise essential for brands to be watching out for any kind of stigmatization and denigration of the brand name by the method of similar advertising so as to guarantee greatest deals, numerous elements may depend on such near publicizing so as to make a bias in the brains of the layman. It is hence prudent that brands may coordinate their workers just as organizations managing in the said circle to be on consistent check and post for any of the aforementioned exercises if it takes place. This was seen in the recent case of Hindustan Unilever Ltd. Vs. Reckitt Benckiser (India) Pvt. Ltd. [COMPIST 300 of 2020] wherein the complainant Hindustan Unilever Ltd filed a suit against Reckitt Benckiser before the Bombay High Court for injunction and disparagement, stating and alleging that the advertisement showcased by the defendant has disparaged the product of HUL, that is, Lifebuoy soap and was a blatant copy of the advertisement of HUL.
Most of the business that deals with electronic appliances, cosmetics, textiles, household products, or products which are used on a daily basis by the consumers have to go through this infringement process. Therefore, it is necessary, that as soon as any brand is informed about such infringement, they start taking the required legal actions like sending legal notices or filing complaints against the other party.
Stability of International IPR
Many of the countries have accepted the harsh truth of living with the virus and going forward. Many countries have given relaxations in the nationwide lockdown imposed in their respective governments, and many of them have also lifted the lockdown completely. With this, the economy of different countries is slowly picking up, and people are also adapting to the changes that this virus has brought in the countries. In light of the same, it is important for the brands to ensure strict implementation of their IPR rights across countries.
The multi-national companies and brands are expected to work in line with the jurisdiction law, the enforcement agencies and as well as the private investigation agencies in the local market, to make sure their unique product remains their own, and there is no infringement of the same. It is important to note that the European countries have strict laws for IP infringement and export of the counterfeit goods. Moreover, the enforcement agencies are on a constant vigil and look out for the same. However, the sad part is that this is not the same situation with every country. The same kind of vigil by the enforcement agencies is not there in countries like China and certain jurisdictions in South East Asia.
Investigations against the ports need to be more stringent so that counterfeit products are caught before they enter into the market for selling. It is also recommended that brands, irrespective of their size and name in the market, should involve themselves in protecting their products by registering all the required intellectual properties like copyrights, trademarks, patents etc.
In India, a suit against infringement can be only filed, when the filing party has the necessary trademark, copyright or patent registered in its brand name. Therefore, a brand, for its protection needs to be registered and protected. Moreover, according to the current situation in most of the countries due to the outbreak of the virus, brand protection and registration proves to be another obstacle and a major phase in which the number of counterfeit goods may rise. Therefore, to tackle the current scenario, every brand in the world should ensure that they take the necessary steps to curtail any sort of counterfeiting and/or infringement of their IP rights. It is also advisable to involve a legal person, who can direct every brand upon such situations, wherein the brand’s IP rights have been infringed. The legal person may help the party to send legal notices or initiate legal proceedings against the other party.
Furthermore, the Indian Government is also expected to work for such brands and release advisories for the same, so that their interest is protected. Currently, many shops have started to sell their products in the green and orange zone, however, the future remains unpredictable.