In the current scenario, the economies had turned digital.
In economies around the globe, commerce is the pivotal aspect accountable for the development and growth of the economies. Commerce in general parlance means “the activity of buying and selling, especially on a large scale”.
Originated as a form of system for ordering goods via telex; for the exchange of receipts between supplier and consumers; a new system of commerce developed—e-commerce.
E-commerce—in simple terms—means buying and selling goods online. The boom in e-commerce can be attributed to the development of the world wide web and the exaggerated use of smartphones. “Compuserve” was the very first e-commerce company in the world built in 1969. In India, it was “Fabmart, launched in 1999”. Since then, the growth and development in various fields of e-commerce is on.
INTELLECTUAL PROPERTY RIGHTS (IPR)
The concept of IP though took a pace in the recent past but it is not a new phenomenon. The emergence of the concept can be traced back to the 13th century when King Edward provided protection to a weaver through “letters’ patent”.
E-commerce is something that is conducted online thus making it incorporeal and intangible. Thus, Intellectual property forms an essential component of e-commerce. Intellectual property as per WIPO (World Intellectual Property Organization) “refers to the creation of the mind, such as invention; literary and artistic work; designs; and symbols, names, and images used in commerce”.
If there is property, rights are imperative. IPRs, as per WTO (World Trade Organization), are “the rights given to persons over the creations of their minds. They usually give the creator an exclusive right over the use of his/her creation for a certain period of time”. It will not be wrong to assert that the rights by which the creation of a person is protected and exclusive use of that creation is guaranteed besides protection to the person are the Intellectual Property Rights. The protection of intellectual property can also be related to human behaviour towards protection, incentive, and appreciation.
The interdependency of the IPR and e-commerce cannot be questioned.
CONVENTIONS AND DEVELOPMENT
Owing to the fear of the creators that their ideas, if exposed, will get exploited by others, an international agreement came into being—Paris Convention 1883. The convention strived at protecting patents, trademarks, and industrial designs.
At the same time when patents, trademarks, and industrial designs were given international protection, the literary and art field was still unprotected. The Berne Convention of 1886 addressed this issue.
On July 14, 1967, the WIPO convention was signed which constituted WIPO (World Intellectual Property Organization). WIPO, now an agency of the UN, is a 193 member states organization; a global forum for IP.
The recognition and development of the concept of IP as well as the IPR can be attributable to these conventions.
IP LAWS IN INDIA
Broadly, IPRs in India are recognized, regulated, and protected through three major laws: The Copyright Act, 1957; The Patents Act, 1970; The Trademarks Act, 1999.
The Copyright Act, 1957 strives to embolden the exclusivity of the creator in their artistic, musical, literary, cinematographic, etc. works. It emboldens the power of assent of the creator.
The Patents Act, 1970 strives to protect the patents and the inventors from their inventions being exploited by the market.
The Trademarks Act, 1999 strives to protect the distinguishing nature of a product: may it be logos, colour combinations, etc.
Besides these, there are The Design Act, 2000 (“Design Act”), The Geographical Indications of Goods (Registration and Protection) Act, 1999 (“GI Act”), The Protection of Plant Varieties and Farmer’s Rights Act, 2001 (“Plant Varieties Act”) The Semiconductor Integrated Circuits Layout- Design Act, 2000 (“SICLD Act”) that regulate and protect IPR in India.
ESSENTIALITY & ROLE OF IP LAWS
The concept of e-commerce is a very broad, complex, and non-exhaustive kind of concept. In terms of the aspects involved, we can put it at par with the rudimental way of commerce. It includes almost all aspects of brick-and-mortar businesses. IP laws are not the sole laws that are involved in an e-commerce transaction but, in addition to these laws there are policies of the government; taxation laws; technology, and data protection laws; that are intertwined with e-commerce.
Intellectual Property Laws play a pivotal role in the protection of businesses and businessmen’s IPs like their trademarks, logos, patents, designs, copyrights, trade secrets, etc.
Trademarks and logos are essential for the expansion of businesses, and businessmen know the true value of these.
In the celebrated case Clinique Laboratories LLC &Anr v. Gufic Ltd. &Anr. (2009) Delhi HC, the honourable court invoking its powers under section 124(5) of the trademarks passed an injunctive order in favour of the plaintiff restraining the defendants to use a similar or identical trademark.
In the Christian Louboutin case, Christian Louboutin SAS vs. Nakul Bajaj & Ors, the honourable high court held the defendants—an e-commerce website—for the infringement of the IPR of the Christian Louboutin as the transactions by the defendants were not authorized by the Christian Louboutin. Moreover, the genuineness of the products was not assured by the defendant.
In the case Star India Pvt. Ltd. vs. Moviestrunk.com &Ors. (2020) Delhi HC, the honourable court guaranteed the protection of exclusivity in the work of the creator by passing an order with damages against the defendants for streaming the content of the plaintiff without consent.
Amazon Seller Services Pvt. Ltd. v. Amway India Enterprises Pvt. Ltd. & Ors., in this case, infringement of trademarks in the light of the principle of International Exhaustion was discussed at length whilst other issues. The honourable court observed that Amazon provides details of the seller of the Amway product on their platform and does not pass off amazon as their product. Thus, no infringement is committed by Amazon.
In Flipkart Internet Private Ltd. vs State Of Nct Of Delhi & Anr., Flipkart filed the petition for quashing the FIR filed by the defendants implicating the plaintiff under Sections 103/104 of the Trademark Act, 1999 and Section 63 of the Copyright Act, 1957. The honourable high court quashed the FIR and held that Flipkart is an “Intermediary” and has complied with the due diligence under Rule 3 of IT Guidelines. Thus, in the present case registration of an FIR against an intermediary would lead to a miscarriage of justice.
It can be understood after discussing the cases that the interpretation of IP laws by the honourable court has assured the protection of labour and innovation to the creators.
Considering the digitalization of economies and the escalating concept of e-commerce, the role of IPR and IP laws has become pivotal. Good IP laws can account for the blooming of commerce—especially e-commerce—around the globe.
For the expansion and development of any kind of business, it is of utmost importance that the ideas; labour; work; attached and involved with business must have protection from intruders and exploiters. The IP laws in India chiefly focus on the protection of the work of the creator. They, in a way, assure the creator of exclusive and absolute enjoyment of the work.
Licensing and sublicensing of the license by the licensor of the IP; may it be Trademarks, Copyrights, etc, is the quality feature of the IP laws. With this feature, the licensor of the work can license it to others and generate a fortune. Most businesses—especially food chains—work on the model of the franchise which is based on the license of IP.
IP laws have a prime role in the expansion of business around the globe. The protection guaranteed by the laws motivates the creators to develop and create new work. The essence of these laws is to provide absolute control over the work to the creator. The IPs of the business hold more value than the business itself. The IPs such as Logos and Marks are the distinguishing aspect of a business from other businesses. Advertising the business with the use of these IPs enhances the reach of a business. Thus, the protection of IPs is directly associated with the growth of a business.
Digitalization of economies, around the globe, has triggered e-commerce and has enhanced the role of IP in commerce. Considering the surge in e-commerce and the role of IP, it is imperative to have stringent IP laws. The role of IP laws in the expansion and protection of businesses as well as creators is substantial. IP laws in India besides International Conventions and court interpretation have strived to provide due protection to businesses. As the concept of e-commerce is dynamic, a new development in the laws is assured.