TPP vs. RCEP

The TPP (Trans- Pacific Partnership) is a multinational trade agreement between 12 countries namely, USA, Australia, Brunei Darussalam, Canada, Malaysia, Mexico, New Zealand, Peru, Singapore, Vietnam and Japan.

Each nation wanted to end the negotiation in 2012, but there were a few issues such as agriculture, Intellectual Property and investments which caused the negotiations to continue.

South Korea did not participate in the 2006 agreement, but showed interest in entering the TPP agreement. The other countries interested in the agreement are Taiwan, the Philippines and Colombia as of 2010; Thailand and Laos as of 2012; Indonesia, Cambodia, Bangladesh and India as of 2013.

The RCEP (Regional Comprehensive Economic Partnership is another FTA negotiation that has developed among 16 countries; the 10 members of ASEAN (Brunei, Cambodia, Indonesia, Laos, Malaysia, Myanmar, the Philippines, Singapore, Thailand and Vietnam) and the six countries with which ASEAN has existing Free Trade Agreements (FTA) – Australia, China, India, Japan, Korea and New Zealand. In relation to RCEP these six non-ASEAN countries are known as the ASEAN Free Trade Partners. In between these countries seven have already signed the TPP Agreement and the others are interested in the TPP membership. So we can presume that these two agreement member countries will come under one umbrella to create new vast free trade zone.

-Atanu Mistry

The Biggest Problem in Piracy

Rocky Ouprasith, 23, the founder of the website RockDizMusic.com, a Cyberlocker site that made it easy to download songs, was sentenced to three years in prison in November, 2015. He was also ordered to pay USD 99,139.67.
Ourpasith started the site in 2011, hosting user content on servers in France and Canada and ran a similar website in Russia and the Netherlands. The site was seized by the Immigrations and Customs Enforcement (ICE), a division of the Department of Homeland Security, in 2014.
Ouprasith admitted to obtaining copies of copyrighted songs and albums from on-line sources and encouraged others, whom he called 'affiliates', to upload music to the website. He agreed to pay these 'affiliates' based on the number of file downloads. In his plea agreement, Ouprasith admitted the market value pf the illegally obtained material to be approximated more than USD 3.5 million.
Cyberloacker is an on-line service that allows users to store and share large files. Cyberlocker websites have several uses. they're useful for sharing copyrighted maerial. while the major services don't provide search engnes themselves, there are a number of third party search-engines that do. a search for a popular movie or television show on one of these specialised search engines, like Filestube.com , shows there is plenty of pirated material that can be easily accessed through these cyberlocker websites.
after all this commotion, the cyberlocker companies made it clear that they weren't going to sit around. Just a day after the MarkMonitorreport came out citing RapidShare as a 'top digital piracy service', RapidShare fired out an indignant press release saying it might sue for defamation. A day later, Mega Upload (another cyberlocker service holder) pushed back in a similar manner.

- Atanu Mistry

Batmobile gets Copyright Protection

Since 1939, Batman has been featured in numerous publications by DC Comics, as well as in feature films and television shows. Since 1941, many of the comic books, films, and other works featuring Batman also depict his vehicle, the Batmobile. As a US Appeals Court observed, it is an indispensable crime fighting vehicle driven by the hero Batman and has sufficient character traits to qualify for a copyright protection.

The infringement case was between Mark Towle, owner of Gotham Garage, who makes replicas of the Batmobile as it appeared in the 1960s live action television show and its 1989 appearance in the “Batman” movie.  The replicas sell for approximately 90,000 US dollars each. DC Comics sued Mark Towle in 2011, claiming rights in those versions of the Batmobile, even though the Batman comics published by DC did not feature Batmobile designs that looked like the Batmobile in the movies and/or on the TV show.

To determine whether characters in comic books, television shows or movies are entitled to such protection, courts conduct a three-part test. First, the character must have “physical as well as conceptual qualities.” It also has to be “sufficiently delineated” so people recognize it as the same character across time. And third, the character has to be “especially distinctive.” The Batmobile passed the test and the court ruled that a character could be protectable based on distinctive and consistent character traits “even if the character does not maintain the same physical appearance in every context.”

“To the Batmobile!”

- Nayanika Singhal

U.S. Court Rules Yoga Cannot Be Owned

Bikram Choudhary, the founder of “Bikram Yoga” – a series of 26 yoga postures to be performed in an environment heated at the temperature of 40° Celsius – sought to copyright the posture sequence in his name and claimed that they could not be taught by anyone whom he did not prescribe. The practice has made a name for Mr. Bikram and has helped him earn 4.9 Million a year and includes speaking enagagements, book and CD sales.

He developed the postures as a student under Bishnu Ghosh in the 1970s. By early 2000s he had franchised his practice to 600 studios and in 2002 his lawyers began sending cease and desist notices to anyone who taught his style of yoga without his authorization.

In 2011, Bikram’s Yoga College of India sued California-based Evolation Yoga for copyright infringement and related claims. The studio offered yoga classes that were similar to the posture sequence popularized by Mr. Bikram.
After a heated battle, a U.S. District Court judge ruled in the favour of the defendants and held that

Mr. Bikram does not in fact have copyright protection for the 26 yoga posture sequence he developed. The court stated that copyright protects only the expression of this idea — the words and pictures used to describe the sequence —and not the idea of the sequence itself.

This ruling implies that the posture sequence claimed by Mr. Bikram does not have copyright protection and can be taught by other studios without the fear of being sued over it. The court has made it perfectly clear that Yoga is not a copyrightable subject and it cannot be owned by a particular person. Yoga belongs to the public.

- Nayanika Singhal

WARNER/CHAPPELL MUSIC LOSES THE ‘BIRTHDAY SONG’

For a simple composition, the ‘Happy Birthday’ song has had a complex history riddled with copyright lawsuits and profit-earning schemes. A Federal Judge in a surprise decision on 22^nd September, 2015 ruled that Warner/Chappell Music never had the right to charge for the use of the song. Warner had been enforcing a copyright since 1988, when it bought Birch Tree Group, the successor to Clayton F. Summy Co., which claimed the original disputed copyright.

The lawsuit against Warner claimed that the company had earned millions of dollars in unlawful licensing schemes. The Judge ruled that the copyright filed by Clayton F. Summy Co. in 1935 granted only the right to various piano arrangements and not the actual lyrics of the song.

Until now, Warner has asked for royalties from anyone who wanted to sing or play the song, with the lyrics, as part of a profit-making enterprise. Royalties were most often collected from stage productions, television shows, movies or greeting cards. But even those who wanted to sing the song publicly as part of a business technically had to pay to use the song. The lawsuit stated that the music company earned approximately two million a year in licensing fees.

Both the parties agreed that the melody of the song, first written as ‘Good Morning to you All’ by two sisters Mildred and Patty Hill, had entered the public domain years ago but Warner still claimed that it owned the rights to the song as per the 1935 copyright claim.

The Judge’s stunning ruling implies that the song is now a public work and everyone is free to use it without the fear of having to pay for it.

Nayanika Singhal 

Costco to Pay

The luxury retailer Tiffany and Co. has triumphed in its suit against the warehouse club Costco Corp. filed on February 15, 2013. Tiffany contended that Costco was engaging in the sale of counterfeit Tiffany diamond engagement rings. In the complaint Tiffany accused Costco of counterfeiting, unfair competition, trade mark infringement, injury to business reputation, false and deceptive trade practices and false advertising. Tiffany contended that Costco had willfully violated the laws and was liable for trade mark infringement and trade mark counterfeiting in its use of ‘Tiffany’ on signs in the jewelry cases at its stores.

The TIFFANY mark has been used continuously for 175 years and enjoys worldwide fame and recognition. Tiffany contended that when Costco used their mark to refer to goods which had no relation to Tiffany and Co. whatsoever, it infringed Tiffany’s trademark and damaged both their customers and their brand. However, Costco defended itself aggressively and contended that the Tiffany ring setting is an ‘industry – standard’ term comprising of multiple prongs extending upwards to hold a single diamond. It denied infringement and asked the Court to prohibit the Plaintiffs (Tiffany) from leveling any false claims of the exclusive right to use the term Tiffany for a style of ring setting.

On September 9, 2015 a U.S. District Judge rejected Costco’s claim that Tiffany is a generic term for a kind of ring setting and ruled that Costco willingly sold counterfeit Tiffany diamond rings and would face a jury trial on October 30, 2015 to determine the damages for trademark infringement and counterfeiting.

Nayanika Singhal

Problems With Self-Filed Trade Mark Applications

With the growing need for business enterprises to create and maintain a solid brand image, there is a sharp rise in trade mark applications being filed by the owners themselves. This marked increase in ‘self-filed’ applications is more prevalent in the small and medium enterprise (SME’s). Though this method might seem cost effective to many, creates a lot of complications in the long run.

The major problem faced by the owners opting for self-filed applications in the prosecution stage is the caused due to the applicants not opting for a pre-filing search. A search is extremely essential as it gives the proprietor an idea about the possible objections and oppositions which might come his way in the process of registration. Seeking professional help in this stage not only gives the owner an idea about the existence of any deceptively similar mark subsisting in the registry but also a professional’s opinion and suggestion on modifying or altering the mark in order to make sure it faces minimal deterrents in the passage of registration. Another grave problem with applications being filed by owners themselves is the lack of knowledge on the classification of goods and services, which results in applications being filed in the wrong class. The most common problem confronted by such applicants is the objection stage, where the Examiner of Trade Marks has to be satisfied with the reply to the objections under Section 9 and 11 of the Trade Marks Act, 1999. Drafting a reply to the objections, for a person who is not well-versed with the provisions and concepts is unmanageable. Now the most challenging part of the entire procedure, the Opposition stage. The Opposition stage allows a third party to challenge the mark proposed for registration after it has been advertised in the Trade Marks journal. The owner has no option but to call for professional help at this stage and chances are that the number of oppositions could have been pre-determined or minimized had the owner engaged an Attorney in the first place. The other problems encountered include missing the deadline to renewal applications, difficulty in filing amendment to alter details etc.

Hence it is advisable for business owners to seek professional help while laying the foundation for a brand they want to establish as it will not only relieve them of the burden and help them concentrate on other areas of business development but also pave a way to a  strong, stable brand with right professional strategies and approaches.

Poulomi Paul