Wednesday, January 30, 2013

USPTO Grants Apple Trademarks For Its Retail Outlets Designs And Layout

Apple has been vigorously protecting its brand and trademark around the world. In one such example, the US Patent and Trademark Office (USPTO) accepted Apple's request last week for trademarks on the minimalist design and layout of its retail outlets.

With a booming e-commerce in India, Apple must be planning to protect its brand and trademark in India as well. Apple has already showed its displeasure for the Asian region, especially in China. In 2011, authorities in the Chinese city of Kunming stopped 22 fake Apple stores from illegally using the company's trademarks after Apple lodged a complaint with authorities.

Since trademark is territorial in nature, Apple must also protect its interests in the Indian territory. Intellectual property rights (IPRs) in India are well known and India has a strong trademark law in the form of Trademarks Act, 1999.

Apple said in its application in May, 2010 that it was not claiming color as a feature of the mark. The mark consists of the distinctive design and layout of a retail store, it said.

Apple must be very careful while engaging in e-commerce activities in India. There are well recognised legal requirements to start an e-commerce website in India and the legal formalities required for starting e-commerce business in India. Similar regulatory requirements do exist in other countries as well.

For instance, Apple was recently fined in Beijing Court for unauthorised e-book sales. Similarly, there are many cyber laws due diligence requirements in India that companies like Apple must comply with in India in order to engage in legally sustainable e-commerce business activities.

There are many techno legal compliance requirements that e-commerce portals, including Apple, Amazon, E-Bay and others, must comply with. At Perry4Law and Perry4Law’s Techno Legal Base (PTLB) we believe that cyber law due diligence, Internet intermediary liability and cyber due diligence for Indian companies must be kept in mind by various e-commerce websites and players.

At the end of the day managing techno legal IP a requirement is of great importance to all concerned who are eying upon India as a market.

Renewal Of An Expired Trademark In India And United States

Trademark law of India is passing through an interesting and developmental phase. Recently Samsung has raised the issue of international exhaustion of a trademark under Indian trademark law. Similarly, trademarks registrations in India have also increased as India is becoming a favourite destination for commercial activities world over.

Trademark registration in India is regulated by the Trademarks Act 1999 of India. A registered trademark is valid for a period of 10 years that can be renewed for another 10 years at a time. Further, international registration of trademarks under Madrid Agreement and Madrid Protocol can also be explored by applicants. However, the Madrid Agreement and Madrid Protocol and its applicability and implementation in India are still in a flux.

There may be cases where a trademark holder fails to renew his/her/its trademark in time. Renewal of an expired trademark is the only option left in such cases. In India even if the mark has been expired, one can apply for its re-registration. If someone else applies for registration of expired trademark as per the prescribed procedure, owner of expired trademark can file objections at the registry, tribunal or appropriate forum.

In United States (US), to keep the registration alive or valid for all trademarks registrations, except for non Madrid Protocol based registrations, the registration owner must file specific documents and pay fees at regular intervals.  Failure to file these documents will result in the cancellation of his/her/its registration.

For Madrid Protocol Based Registration, after the protection is granted to the international registration and a U.S. registration issues, to keep protection in the U.S., the U.S. registration owner must file specific documents and pay fees at regular intervals. Failure to file these documents will result in the cancellation of his/her/its U.S. registration and the invalidation of protection of the international registration by the United States Patent and Trademark Office (USPTO).

Under Section 8 of the Trademark Act, 15 U.S.C. §1058, a §8 Declaration of Continued Use is required to be given by the trademark owner. The Declaration is a sworn statement, filed by the owner of a registration that the mark is in use in commerce. If the owner is claiming excusable nonuse of the mark, a §8 Declaration of Excusable Nonuse may be filed. The purpose of the §8 Declaration is to remove marks no longer in use from the register.

The USPTO will cancel any registration on either the Principal Register or the Supplemental Register if a timely §8 Declaration is not filed by the current owner of the registration during the prescribed time periods.  The USPTO has no authority to waive or extend the deadline for filing a proper §8 Declaration. Registrations finally cancelled after the expiry of permissible period due to the failure to file a §8 Declaration cannot be reinstated or revived.  A new application to pursue registration of the mark again must be filed.

Holders (owners) of registered extensions of protection to the U.S. (also called §66(a) registrations, registrations resulting from 79’ series applications, international registrations extended to the U.S.) who wish to maintain the protection granted their mark in the U.S. pursuant to the Madrid Protocol must file an affidavit or declaration of use in commerce or excusable nonuse to avoid cancellation of protection in U.S. Such affidavits are required pursuant to Section 71, 15 U.S.C. §1141k, of the Trademark Act.  The USPTO has no authority to waive or extend the deadline for filing a proper §71 Declaration.  Registrations finally cancelled after the expiry of permissible period due to the failure to file a §71 Declaration cannot be reinstated or revived.  A new application to pursue registration of the mark again must be filed.  

The holder of a registered extension of protection of an international registration to the U.S. must file an application for renewal of the international registration with the International Bureau (IB). Renewal of international registrations is governed by Article 7 of the Madrid Protocol and Rules 29 - 31 of the Common Regulations under the Madrid Agreement and Protocol.

A renewal can be filed during the six months before expiry of the period of protection or in the six months following the expiry of the current period of protection with the payment of a surcharge.

The term of an international registration is ten years, and it may be renewed for ten years upon payment of the renewal fee.

Perry4Law hope this information would be useful to all concerned stakeholders.

Source: IPR Services In India.

Sunday, January 20, 2013

Is Online Gambling And Betting Legal In India?

As a leading techno legal ICT law firm of India, Perry4Law is frequently approached for numerous techno legal issues. One of them pertains to e-commerce laws and regulations in India.

Recently many queries have been raised about the applicable online gambling laws and regulations in India.  We have also observed that e-commerce legal compliances in India are not followed in true letter and spirit. This may be due to lack of knowledge about applicable e-commerce laws but ignorance of laws is no excuse.

If e-commerce players do not follow the laws of the land, they may found themselves in uncomfortable situations. For instance, cyber law due diligence, Internet intermediary liability and cyber due diligence for Indian companies are some of the issues that have been ignored by almost all e-commerce players of India.

Coming back to the burning issue whether online gambling and online betting is legal in India or not? We have already covered the legality of online gambling and betting in India and other e-commerce compliance requirements in India but we would briefly cover the same once again.

The golden rule for deciding whether online gambling in India is legal or nor has to be judged by many factors that depends upon the facts and circumstances of each case and upon state to state. There are many states in India where gambling is legal and few where even online gambling and betting is legal. However, there are some states like Mumbai where online gambling is expressly prohibited and made a punishable offense. So it depends upon the state where you wish to carry the online gambling and betting business.

Then there is the rule of skills versus chance as laid down by the courts of India. As a general rule, where the game involves application of skill on the part of the player and the element of chance is minimal, the activity would be considered to be a game and not an act of gambling. However, the applicability of this test of skill versus chance may not be applicable to online or Internet games, betting and gambling as various judicial decisions pertaining to different sets of facts and circumstances and can be distinguished easily in subsequent litigations.

Finally, economic and taxation legislations like tax laws of India, anti money laundering laws, etc are also involved while operating online casinos, online gambling and betting and online gamming platforms.  The provisions of these economic legislations are very stringent in nature and can cause great detriment to the owner or operator of the online casino, gambling and betting website.

To be on a safer side, it is better to comply with various techno legal laws of India while opening an online gambling, gaming and betting platform rather than facing the punitive provisions of Indian laws.

Source: E-Commerce Laws and Regulations In India.

E-Commerce Compliances In India

E-commerce is the latest entrepreneur bandwagon in India. Thousands of e-commerce portals have emerged during the year 2012. However, in the zest of earning profit, legal and compliance requirements pertaining to e-commerce have been totally ignored by almost all the e-commerce portals.

The most vulnerable categories that have opened their online shops pertain to online pharmacies, online gambling and gaming, electronics, etc. These e-commerce portals are not at all complying with the respective laws of these segments.

Even the Indian government is lax in implementing the regulatory and compliance requirements against these illegal online pharmacies, gambling portals and other similar e-commerce platforms.

This has posed serious threat to not only lives of millions but also to the socio-economic and law and order situation n India. Regulatory bodies covering these fields must be more vigil while keeping a tab upon illegal and unethical activities of those e-commerce portals that are flouting the laws of India.  

There are many techno legal compliance requirements that e-commerce portals of India must comply with. At Perry4Law and Perry4Law’s Techno Legal Base (PTLB) we believe that cyber law due diligence, Internet intermediary liability and cyber due diligence for Indian companies must be kept in mind by various e-commerce websites and players.

Presently, cyber law compliances, due diligence and techno legal compliances are not followed by various e-commerce websites in India. There is an urgent need to scrutinise these e-commerce portals and prosecute the guilty for violations of Indian laws.

It would amount to adoption of double standards by Indian government if it plays harsh upon foreign companies but leaves Indian companies and e-commerce portals untouched. Let us hope Indian government would do the needful in this regard as soon as possible.

Source: E-Commerce Laws In India.

Online Gambling Laws And Regulations In India

Online gambling in India has aroused great interest among many e-commerce entrepreneurs of India. This is because online gambling is a very remunerative and profit oriented business. However, online gambling is also a complicated business filed as many laws and technical issues have to be resolved at the same time.

We have a central law on gambling called the Public Gambling Act of 1867. Similarly, we have many state laws on gambling that are mostly based upon the central law. Further, almost all the state laws are regulating real world or offline gambling in India. The exception in this regard can be found in the laws applicable in places like Goa and Sikkim.

Recently Goa has made its casino laws very stringent keep in mind the money laundering, black money and tax evasion issues in mind. Similarly, Sikkim is also in the process of harmonising its laws with the central laws.

As far as judiciary is concerned, the Supreme Court of India has made a distinction between skills based and chance based gaming activities. Of course, each case depends upon its own facts and circumstances and the respective state law and we cannot apply one decision uniformly in all cases of gambling and online gambling. 

The e-commerce laws and regulations in India are still at the infancy stage. As a matter of fact, a majority of e-commerce portals and players in India are not following the laws of the land in true letter and spirit. Surprisingly, there is a general misconception among the e-commerce players of India that for running an e-commerce website in India they need not to follow much law. On the contrary, there are well recognised legal requirements to start an e-commerce website in India and the legal formalities required for starting e-commerce business in India.

The chief among these e-commerce players are online pharmacies, online gambling and gaming portals, electronics e-commerce websites, etc. They fail to understand that use of technology has brought additional legal issues that are primarily techno legal in nature. Their continued ignorance may bring civil, criminal and financial penalties. The recent spate of FDI crackdowns by India government proves this point.

At Perry4Law and Perry4Law’s Techno Legal Base (PTLB) we believe that cyber law due diligence, Internet intermediary liability and cyber due diligence for Indian companies must be kept in mind by various e-commerce websites and players. The skill and chance and state subject legal arguments are not sufficient to comply with complicated techno legal requirements of India as on date. So before launching an e-commerce portal, the concerned person or company must make it sure that techno legal requirements are duly complied with.

Source: E-Commerce Laws And Regulations In India.

Sunday, January 6, 2013

Optical Character Recognition (OCR) Legal Issues India

Optical character recognition (OCR) is one of the most important stages of e-discovery or cyber forensics process. OCR is the process where images of handwritten, typewritten or printed text are converted into machine-encoded text using the mechanical or electronic conversion.

The main purpose of OCR is to digitise printed texts so that they can be electronically searched, stored more compactly, displayed on-line through virtual data rooms, and used in machine processes such as machine translation, text-to-speech and text mining. OCR is also very important for presenting and defending claims and obligations in civil and criminal proceedings.

OCR, e-discovery and cyber forensics are sometimes combined while investigating financial frauds and crimes, serious frauds, forensics audit, white collor crimes, corporate frauds, fraud risk analysis, IT and cyber frauds, etc.

However, there are certain techno legal issues that must be taken care of while engaging in the OCR activities. If these techno legal issues are not followed properly, the end OCR product may not be admissible in a court of law or other investigation.

Further, only relevant material must be converted into legally admissible electronic records, including OCR. A proper chain of custody must be maintained at all stages of converting printed and other text documents into digital documents and OCR.

There is no sense in converting the entire paper based document s in to electronic format as not all electronic versions would be relevant to the case or investigation. Even lesser electronic records and OCR would be held admissible in a court of law.

According to Perry4Law and Perry4Law’s Techno Legal Base (PTLB) the most important attribute while engaging in the OCR exercise meant for litigation purposes is to first ascertain the relevant documents and then convert them into digital format keeping in mind the admissibility criteria while following proper chain of custody. 

If you are interested in our techno legal services, you may contact us in this regard. See our techno legal services, cyber forensics services, US, UK and EU laws compliances, etc in this regard.

Paper Evidence Scanning And E-Discovery Legal Issues In India

India is in the process of providing of electronic delivery of services to Indian citizens. Further, there is also a shift in electronic financial transactions in India whether it pertains to Internet banking or mobile banking. Additional challenges would also arise due to this digital revolution in India.

E-discovery services in India have become essential due to growing dependence upon electronic services in India. Further, white collor crimes, financial frauds, IT and cyber frauds, forensics accounting and auditing and risk management have further increased the scope of e-discovery services in India.

In e-discovery and OCR procedure, the role of a technology lawyers and ICT law firm is very important. No organisation or individual engaged in the e-discovery or ODR process can afford to engage in a limitless exercise. We at Perry4Law and PTLB believe that any e-discovery and OCR exercise must be primarily guided by relevancy, proper chain of custody and admissibility criteria in all circumstances. This is more so when litigation is an option.

In e-discovery and OCR procedure, data is identified as potentially relevant by lawyers/law firm and placed on legal hold. Evidence is then extracted and analysed using legally acceptable cyber forensic procedures. This includes the stages of identification, preservation, collection, processing, review and production.

These issue must be properly managed as per the techno legal requirements existing in India otherwise the adduced information, documents and evidence may not be relevant and admissible in the court of law.

Friday, January 4, 2013

Cyber Security Initiatives In India By PTLB

In this annual report 2012 we are summarising the techno legal initiatives and projects that have been freshly undertaken and continued by us. These include awareness projects, research and development projects, trainings and education projects and initiatives, skills development initiatives and projects, etc.

Let us start with some background information before we go into the details of our cyber security projects and initiatives and other techno legal initiatives for the year 2102. Perry4Law is the exclusive techno legal ICT, IP and corporate law firm of India and one of the few in the world. Perry4Law is the umbrella organisation and other techno legal segments are supporting it.

Perry4Law’s Techno Legal Base (PTLB) is the leading techno legal segment of Perry4Law and Perry4Law’s Techno Legal ICT Training Centre (PTLITC) is the highly specialised and domain specific techno legal training provider of Perry4Law.

Both PTLB and PTLITC are managing the techno legal lifelong learning centre of India established by Perry4Law. PTLB is also managing the exclusive portal for techno legal e-learning in India and virtual legal education campus in India and techno legal e-learning centre of India.

Besides education and trainings, PTLB is also engaged in techno legal skills development in India and world wide, online dispute resolution (ODR) in India, e-courts research and consultancy in India, etc. PTLB is managing the techno legal and cyber security aspects of skills development, ODR, e-courts, etc as well.

We at Perry4Law, PTLB and PTLITC have been spreading techno legal cyber security awareness in India for long. We are managing the exclusive techno legal national cyber security database of India (NCSDI). We are also managing the exclusive techno legal cyber security research and development centre of India (CSRDCI). To supplement these cyber security initiatives in India, we are also managing cyber forensics research and development centre of India and exclusive techno legal cyber crimes investigation centre of India (CCICI).

Our cyber security initiatives and projects in general and techno legal initiatives in particular are moving towards global level. If you think that your organisation or you in your individual capacity can be a valuable addition to our projects and initiatives, you may find the segment of MOU and tie up with PTLB useful. Send us your professional proposals and we may revert back to you for a suitable business collaboration opportunity.

Pharmaceuticals Trials, Experiments And Online Sales Must Be Regulated In India

Recently, the Supreme Court of India asked the Indian government to monitor and regulate all clinical trials of experimental drugs in India.  The Apex Court was anguished over the manner in which clinical trials of experimental drugs in India are handled by Indian government and its departments.

In particular, the Apex Court was angry with the Central Drugs Standard Control Organisation (CDSCO) that has failed to perform its duty properly. So much so that the Apex Court revoked the power of the CDSCO for its failure to monitor and regulate clinical trails of experimental pharmaceuticals in India.

Meanwhile, the government is considering the report of an expert committee set up to examine the issue of alleged approval of drugs without clinical trial by CDSCO. The Department related Parliamentary Standing Committee in its Report on the functioning of CDSCO has raised various issues pertaining to functioning of the organisation, including alleged approval of drugs without clinical trials.

In the proceeding before the Apex Court it came to the light that no laws were in place between 2005 and 2012 for new chemical entities and yet the government was approving trials very casually.

However, till now none have raised any objection regarding the illegal and unregulated online sales of prescribed medicines in India that is happening right under the nose of Indian Government. Such sale of prescribed medicines by e-commerce portals that also without following the laws of the land is really perilious for the end consumers. Online pharmacies in India are violating Indian laws and Indian government is least interested in curbing this practice.

The problem is aggravated in the absence of strong and effective health related laws in India, including those pertaining to online sales of prescribed medicines in India. We have no dedicated data protection laws in India and privacy laws in India. Even data exclusivity laws in India need to be formulated. A regulatory framework for data exclusivity In India can be really helpful in this regard.

The health ministry of India in general and the Indian government in particular must take immediate action regarding these situations otherwise serious ramifications may occur.