Ghostwriting Troubles!!!

Ghostwriting is not a recent development, but it has been very much in practice since the days of Mozart. The Classical Era Composer was known for having ghostwritten music for wealthy patrons. Political leaders have been exploiting this avenue, along with many Executives and celebrities; who do not prefer to invest much of their time in relating to the public en masse, the lives they lead.

Recently, the erstwhile Chancellor of West Germany and the reunited Germany, Helmut Kohl, got into a legal tussle with his former Ghostwriter Heribert Schwan. After the fall out between Kohl and Schwan (publication of 3 books together), the ghostwriter has published "Vermachtnis: Die Kohl Protokole", recording many direct quotes of Kohl. Mr. Kohl had decided against the publication of the fourth book. 

Kohl in his interviews with Schwan had made very direct comments about the present German Chancellor, Angela Merkel, the former British Prime Minister Margaret Thatcher, and Mikhael Gorbachev too.

The former Chancellor has been successful in obtaining an injunction against any further printing of the book, which include the quotes of Kohl as recorded in the previous interviews with Schwan. The court has gone ahead in supporting Kohl's claims holding the ghostwriter's act to be an unlawful infringement of confidentiality, since the book has been published against the express wishes of his.

This is not the end of the tale, let's see how the story unfolds.


- Bagmisikha Puhan

Orphan Works

Copyright protected work for which the rights holder(s) is/are positively indeterminate and cannot be contacted, is said to be an Orphan Work. Even when the author is known, but there is lack of sufficient details to contact him or her, the work falls into this domain. A copyright holder’s sudden demise might also lead to the work slipping into the category of Orphan Works, when the inheritance cannot be established.

The fact that the owner of the copyrighted work cannot be reached makes it very difficult to obtain his permission for the use of the work, mere digitization becomes impossible. The use can only be warranted by Fair Use Exceptions.

The respective Governments have taken steps towards extending the accessibility of these works to the general public for these works to maintain their successful circulation and some have also taken steps to guarantee the payment of royalties for use of such works.

The latest news in this regard, is the UK IPO’s licensing scheme for Orphan Works. The IPO intends to maintain a register of works which can be licensed out to Applicants upon payment of royalties. The register will also enable the authors to check if any of their works have been labeled as Orphan Works under the system. The IPO also retains the power to deny the Applicants licenses where the proposed use is deemed to be inappropriate, or on any other reasonable ground.

The EU rules, in place, have already allowed the libraries, museums and universities, among other institutions, to digitize “Orphaned Works” from their respective collections, only after a diligent search has been carried out for determining the owners of the works. It is only time which shall determine the success of the scheme which the UK IPO has intended to move ahead with, and similar frameworks being adopted by other IP regimes across the globe. 


- Bagmisikha Puhan

What's in a Name?

Brand names matter a lot. A consumer’s confusion can only be put to rest after you feed him/her with a distinctive mark to distinguish between different goods and services. An intelligible Trade Mark Attorney/Lawyer can explain to you how it is better to coin a fanciful word like “Kodak” for Cameras; and an arbitrary word like “Apple” for computers; instead of thinking of a generic name like “Aqua” for bottled water.

A trade mark or service mark determines your claim to the characteristics that identify the goods or services that your business involves with, allowing the consumers to cite the differences between what is yours’ and what is that of the competitors’.

Some names have had what is known as “inherent distinctiveness” and so have got protection without much ado, like, Kodak, Exxon, etc. And, there of course is the concept of marketing, advertising and positioning of products and services in a manner, that the brand name is etched in the minds of the eager consumers. Trade marks (inclusive of service marks) which are names or geographical terms, have to prove that they have become distinct in the market, through substantial sale figures, and advertisements; and, have said to have acquired “secondary meaning” as a consequence.

What a business house does not want is for the brand name to become a generic name. Xerox has been vocal with their slogans and advertisements, with declarations like “you cannot ‘xerox’ a document, but you can copy it on a Xerox Brand copying machine”. Despite so many efforts from their end, dictionaries have oft quoted “Xerox” in their prints.

Whenever, you decide to venture into any business with a new trade mark, consult a Trade Mark Attorney or Trade Mark Lawyer in respect of selecting an appropriate trade mark which is free from any legal encumbrances. 

- Bagmisikha Puhan

Product Disparagement

To say my product is superior is fine; but to say, that your/his product is bad, definitely calls for action. Advertisers have always used the test of comparison for the benefit of their clients, but when the comparison is false or misleading, the advertisement slides into the domain of Product Disparagement. To make an advertisement, and to see it succeed without getting involved in legal battles, one has to ensure that the message showcased in the advertisement does not encroach into the non-permissible limits of comparative advertising.

The courts have been supportive of the cause of Comparative Advertising, bringing a clear distinction between this and Product Disparagement, also referred to as Trade Libel. In Reckitt and Colman of India v. M.P. Ramachandran & Anr., [1999(19) PTC 741], the court very categorically specified that, the seller can, (i) declare his goods as the best, (ii) claim superiority of his goods over competitors’, (iii) compare advantages of his goods over that of others’, but, (iv) cannot say that his competitors’ goods are bad.

Since there is no specific legislation on the subject in India, the issue still evolves and bases itself on the common law principles. Unlike, the categorical demonstration and application of the Lanham Act, which governs the law of Trademarks in the US; Indian courts are still settling the issues with their own judicial insights and interpretations. 

- Bagmisikha Puhan

Distinctiveness in Trade Marks

It is a wide known fact and generally accepted concept of law, that for a mark/label/logo to be worthy of Trade Mark Protection, there should be a level of distinctiveness that the proposed mark/logo/label projects or promotes in the first place.

Distinctiveness has always been classified under the broader spectra of Inherent Distinctiveness, and Acquired Distinctiveness. It is a futile exercise to explain what can be categorized as Inherently Distinctive, like what Wrangler is to Jeans! The concept refers to a scenario where any name is arbitrary, fanciful and sets apart itself from the rest in the relevant product or service market.

On the contrary, suggestive or descriptive marks are not inherently distinctive; only when they achieve a degree of secondary meaning, when they acquire distinctiveness, can Trade Mark Protection be extended to such marks. India, like most other nations, allows for certain marks to be registered when satisfying the grounds for acquired distinctiveness; overlooking certain grounds for refusal of registration.

The significance of Acquired Distinctiveness has always been the subject of debate. When a mark gains popularity so much so as to help and let the consumers associate its products and services with the industrial house itself, such use of the mark is said to have acquired distinctiveness, a secondary meaning is attributed to such use, and product recognition by the consumers. The extent of this secondary meaning and acquired distinctiveness is what makes it possible for a mark to enjoy the desired Trade Mark Protection, when under the general circumstances it would have failed to do so.


- By Bagmisikha Puhan 

Fair Use Defense

Fair use as a concept stands on very tricky grounds. One cannot just be sure if the ground will stick through as fair use or not. In the scenario where such a matter reaches the courtroom, the time and finances that are invested into settling the dispute, many a times outweighs the benefit reaped out of the use in the first place.

For all those people who have been taking shelter of acknowledgments and disclaimers are not really safe. The very fact that one has acknowledged the original author in his or her use of the protected work does not preclude the person from their liability in a suit of infringement.  The fact that the original author has been cited can support the author in his claim of infringement; if he chooses to retort to the claim of a person infringing upon his right of publicity.

The fact that a disclaimer has been added to the use of the protected work does not preclude the user from his liability towards infringement. A disclaimer stands to prove stronger grounds for fair use, but does not stand as a ground for defense in its own merit.

One of the best ways to avoid any claims of copyright infringement is to abstain from using the protected material without the explicit permission of the original author. Apart from the usual factors which are taken into consideration while judging an instance of fair use, consideration of acknowledgements and disclaimers proves to be a viable option for the courts. 

- Bagmisikha Puhan

Google Tattoo

For years tattoos have been a fashion statement, but in future tattoos can me much more than that. Google owned Motorola Mobility has recently filed a patent in USPTO for an electronic neck tattoo that can serve as a lie detector. The tattoo can be pasted on the neck or worn on collar or on a band around the user’s neck. The patent application highlights that “the electronic skin tattoo can include a galvanic skin response detector to detect skin resistance of a user; it is contemplated that a user may be nervous or engaging in speaking falsehoods may exhibit different galvanic skin response than a more confident, truth telling individual.”

The tattoo can mainly serve as supplementary microphone and can be paired with various electronic devices such as smartphones, tablets etc.  This means that the user can easilycommunicate through mobile phone by a voice command without having to press any button. The tattoo can run on rechargeable batteries or can usesolar panel technology, capacitive technology, nanotechnology or electro-mechanical technology as explained in the patent application.

 

Picture: A drawing from patent application of Google’s neck tattoo by Motorola

The patent which is titled "Coupling an Electronic Skin Tattoo to a Mobile Communication Device” is primarily meant for nullifying the background noise when a caller speaks from a crowded surrounding. The tattoo worn on the neck can improve the voice quality by making the caller more audible to the person on the other end of the call through a noise-cancelling system.

Interestingly, the tattoo could also be worn by animals, although we are clueless as to how it could help an animal. But for now we are sure that this new wearable technology will make one think before lying.

Authored by Sai Ratna Manjari

Posted By Aurobinda Panda

For Biswajit Sarkar – Advocates – IP Attorney