Tuesday 12 February 2019

Myanmar: New Trademark and Industrial Design Law have been enacted

On February 5, 2018, Amyotha Hluttaw, the Upper House of the Parliament of Myanmar ratified the Trademark, Patent, Industrial Design and Copyright Bills. On 12 December 2018, Pyithu Hluttaw, the Lower House of Parliament, announced that the Trademark Bill submitted by the Upper House was approved. On 17 December 2018, the Lower House announced that the Industrial Design Bill submitted by the Upper House was approved. On 22 January 2019, the Upper House approved the Trademark Bill and Industrial Design Bill (resubmitted with amendments by the Lower House). On 24 January 2019, Pyi Daung Su Hluttaw (Union Parliament) approved the Trademark Bill and Industrial Design Bill. On 30 January 2019, the Union Parliament enacted the Industrial Design Law (under Pyi Daung Su Hluttaw law Number-2) and Trademark Law (under Pyi Daung Su Hluttaw law Number-3) after signing and approval by the President.

As per the report, under the new IP regime, the person will be able to file for trademark and service marks at the Myanmar IP Office and they will also be able to apply for collective marks, certification marks, product packaging and 3D logos. As per the current bill, GI applications are also included as a subsection of trademarks law. When the new IP laws come into force, the registration will be obtained on a “first come, first served” basis.

Fast Action Protocol for IP matters at the Mobile World Congress 2019

Recently, a remarkable step was taken by the Judges of the Commercial Courts of Barcelona, whereby they have set up a protocol of action that will allow holders of Intellectual Property Rights to obtain preliminary injunctions in cases of infringement in an extraordinarily short time during the upcoming Mobile World Congress.

Mobile World Congress (MWC) is the largest mobile industry congregation in the world, bringing together the latest innovations and leading-edge technology from the leading companies. It is the most important congress in the field of communication and mobile telephony, which will be held in Barcelona from February 25 through February 28, 2019.  This is the fifth time when the Courts of Barcelona had provided this important international forum to enable the adoption of preliminary injunctions and the handling of preventive briefs under the most urgent conditions. For the first time, the Protocol is agreed jointly by the Mercantile Court of Barcelona and the European Union Trade Mark Court in Alicante. It will be beneficial in a way that the Protocol will be beneficial not only for the patent infringement but also for the cases of infringement of European Union Trade Marks and Designs.

The courts have committed to process and decide the petitions for urgent preliminary injunctions within a period of 2 days (without a hearing for the Defendant) or of 10 days (with a previous hearing being held) in terms of whether a preventive brief was previously filed. The protocol also provides guidelines for the evaluation of the risk factor which validates that measures are taken without a hearing for the Defendant.

The persons/companies with a reasonable fear of being a passive subject to ex parte preliminary injunctions by a competitor before or during the congress, in order to avoid the adoption of said injunctions, may file a “protective letter” (an anticipated reply or an advance opposition to a foreseeable application for ex parte preliminary injunctions). The admission of protective letters will be resolved on the same day of its filing (24 hours).

 Some of the highlights of MWC are:-
  • GSMA Seminars, delivered by renowned experts, and covering essential industry developments and themes
  • Mobile World Summit which will include a closed-door meeting between top executives and public policy makers, panel discussions and networking opportunities for the entities.
  • As per the report, the European GNSS Agency will have a Galileo stand at the event and will showcase its latest EGNSS-based innovations with support of Horizon 2020.
  • This annual event provides a platform for business opportunities and relationship-building.
  • It will offer delegates the chance to take part in conferences featuring keynotes and discussions; networking opportunities; and the annual Global Mobile Awards ceremony, which recognizes leading mobile solutions and initiatives around the world.

Source: https://www.iam-media.com/law-policy/barcelona-court-issues-fast-track-injunction-protocol-mobile-world-congress-2018

India: Compliance to Data localization regulation

The advent of modernization has introduced many technology dependent miracles. Advancement in the innovative skills of human labour have facilitated the development of a digital infrastructure which caters the multiple needs of the individuals over virtual platform thereby inculcating independent handling by them. Internet is increasingly becoming the medium of carrying out all major present-day activities including information dissemination, communication, commercial transactions, banking functions, etc. This has led to the elevation of the standards of living and has raised the number of e- payments modes.

Online Payments in India

India finds a vast segment of its population now dependent on technology for carrying out number of transactions. The Government has also made efforts for promoting cashless mode of dealings through the digitalization. The payment vis this mode requires the submission of personal and sensitive information of an individual. Considering the vital nature of the information being shared, essential monitoring and control of transmission of such data is required to ensure the provision of a safe and viable payment system within the country.

Online payments in India are regulated by the National Payments Corporation of India (hereinafter referred to as “NPCI”) uses unified payment interface (hereinafter referred to as “UPI”) an instant real-time payment system developed by NPCI regulated by Reserve Bank of India (hereinafter referred to as “RBI”) that facilitates banking operations occurring on the web-platform.

RBI monitoring

In order to have unfettered supervisory access to data stored with payment companies as also with their service providers / intermediaries/ third party vendors and other entities in the payment ecosystem for better monitoring of the payment transactions in India, RBI vide its notification dated April 6, 2018[1] imposed norms regulating data localization (hereinafter referred to as “RBI regulation”). The RBI regulation requires all system providers to ensure that the entire data including the complete transaction details and information regarding the payment instruction relating to payment systems operated by them, are stored in a system only in India October 15, 2018 onwards.

Response by the Payment Companies

Confronted with the challenges such as lack of available servers or data centres in India, administrative cost, compliance burden and time-consuming process being involved therein, the payment companies expressed their concerns to the RBI. However, RBI refused to accept the representations made by the payment entities requesting for the relaxation of norms stated in the RBI regulation seeking the adherence to the same by the deadline provided therein. RBI mandated for the submission of a report in ensuring compliance and clarified that any event of non-obedience to the said directive would entail punitive action against the defaulters.[2]

The consequence…

Attributable to the strict nature of the instructions provided in the RBI regulation, renowned entities such as Visa and Mastercard are in the process of compliance to the data localization policy.[3]
Understanding the confidential nature of data being provided by the customers to these service providers and the impact of the violation of its safety, almost 80% players in this sector have commenced the procedure of compliance to the RBI regulation including submission of proposals to RBI in the said regard. The stringent monitoring by RBI aims to create a more effective and secure data protection regime in India by monitoring the payments done in India.

India: DPCC grants subsidy for e-safe equipment

Evolution in human life has led to the transformation of the early man to the modern-day civilized individual. The complexities in lifestyle has increased reliance to numerous sources to fulfil different and ever-growing needs. From basic simple living to a world full of mechanized equipment, industrialization, automobile revolution, the present-day man depends on high quantities of non-renewable sources of energy including essential as well as non-essential requirements. This causes grave harm contaminating the surrounding environment thereby making it unfit for all forms of life.

Pollution Problem

The over-exploitation of resources for energy and improper disposal of their remnants results in introduction of high quantities of pollutants into the ecosystem hampering the nearby ecosystem. A number of processes such as industrial activities, vehicular usage, crop destruction, constructions, burning of garbage, bursting of firecrackers, etc.

Pollution by cooking

Cooking has been an indispensable need of human life. For the purpose of cooking a lot of fuels have been used since time immemorial including combustion of solid fuels such as wood, animal dung, charcoal, crop wastes and coal. These not only result in improper combustion of the respective resources but are also an eminent source of pollution and health ailments of different nature. There has been a shift in the approach by adoption of completely combustible and a cleaner energy resource - Liquid Petroleum Gas. However, many people still use coal-based cooking devices in the form of traditional Asian oven known as the ‘Tandoor’.

Environment Protection Measures

With the objective of the protection and improvement of environment, numerous legislative frameworks and policies have come up. The Environment Protection Act, 1986 has been enforced with the aim of conservation and improvement of environment was introduced along with legislations working towards the protection of air, water and other environmental components including Air (Prevention and Control of Pollution) Act, 1981 and Water (Prevention and Control of Pollution) Act, 1974.

Delhi Government’s recent efforts  

Established with the objective promoting sustainable development for meeting the present day needs without compromising the needs of the future, Delhi Pollution Control Committee (hereinafter referred to as “DPCC”) was established to regulate and monitor the pollution levels in the National Capital Region of Delhi. In its approach to reduce the increasing levels of pollution in its region, DPCC has introduced a scheme of awarding subsidy for replacing/ conversion of coal-based tandoors with electricity/ gas-based tandoors vide its notification dated October 28, 2018.[1]

As per the provisions of the said notification, subsidy at 50% cost of conversion upto INR 5,000/- to the Owners/ Partners/ Managing Directors of the Restaurants/ Eating Outlets/ Banquet Halls/ Hotels for the process of conversion. The establishments coming to existence after April 1, 2018 are also be eligible for availing subsidy. As per the notification, the entities would only be entitled for the said benefit only after they obtain requisite consent and approval to operate/ renew from DPCC as per the applicable laws and complete the process of conversion.

In order to encourage the use of clean fuel in Delhi and reduce the alarming levels of pollution being witnessed, the DPCC shall allow subsidy to those who comply with the environment-friendly regulation.

India: Govt. seeks tracing of fake WhatsApp messages

The advent of technological advancements in the modern-day world has been a blessing in disguise. With the internet now being the key source of solution for all the problems, it has transferred the present-day life over the virtual platform. Addicted to this modern practice, people find answers to all their needs over the online medium including information, communication, records, commercial transactions, banking, grievances redressal and FIR reporting, etc. 

Innovative Communication

Increasing digitalization has modified the system of communication. Integrating the people across the world, separated by geographical barriers on a medium that eliminates the necessity of physical presence, has been one of the greatest achievements of mankind. Individuals are now connected with others through emails, chats, messages, internet audio/ video calls, etc. transmitted through electronic impulses.

Unified Interface of WhatsApp

While many online portals are available catering to the major needs of communication of the people, on the most popular web-based App in this domain is ‘WhatsApp’. The Facebook owned WhatsApp, not only allows people to communicate with each other by sending/ receiving text messages, internet-based audio/ video calls but also permits sharing of media in the form of pictures, videos, documents all on a single App. The said App can also be operated from desktops.

Challenges before WhatsApp

The easy accessibility of internet and WhatsApp has become a new device for the anti-social elements to carry out the acts of cyber-terrorism through such modes spread with the intent to threaten the unity, integrity, security or sovereignty of the country or to strike terror in the people cause widespread fear. False and incorrect news or information create a sense of distrust among the citizens of the nation. The spread of rumours often leads to civil commotion and distress amongst the citizens thus hampering the peace in the country.

Controlling mechanism

The Government has ordered WhatsApp to formulate stringent strategies to trace the origins of incendiary messages in circulation using technological innovations when the social media giant resisted to determine the message source on account being violative of its privacy policy. However, as a measure to prevent sharing of rumours or unadvisable information, WhatsApp has capped the number of recipients of chat message to 5 to curb mass spamming.[1]

In furtherance to tackle the menace of fake and inappropriate information through its media, WhatsApp has appointed a grievance officer to address the concerns and complaints associated thereto.[2] It enables the users to seek help through mobile App or by contacting the said officer on email, signed with electronic signature or queries sent through postal services.

The Government on October 31, 2018 conveyed to the management of WhatsApp that the messaging App was required to trace the origin of the messages being transferred through its platform.[3] In the said regards the Government clarified that it did not seek to decrypt the messages but required WhatsApp to look into the location and identity of the senders of messages causing provocation for which the App has agreed for. It was stated that the measures are being taken to ensure that WhatsApp does not become a source of circulation of improper and incorrect spam messages.

With the objective of creating a safe online environment and preventing the use of much used messaging App for the fulfilment of nefarious activities, the Government has required WhatsApp for the source identification to curb such malpractices.

India: Amended Companies Law for better management

India is a growing economy where development is attributable to number of factors such as availability of land, labour, raw materials, cost effective incentivizing schemes promoting commercial development in the country. With a view to carry out business operations, the entrepreneurs may opt for any of the available corporate vehicles such as proprietorship, partnership, limited liability partnership, etc. One of such medium to transact business is via setting up of a company.

Legal Light

The Government enforced the Companies Act, 2013 (hereinafter referred to as the “Act”) in order to monitor the affairs of the companies in India. The Act states the provisions regarding incorporation, obligations, liabilities, management of a company thereby ascertaining proper regulation thereof.

Ordinance enforced

The Government promulgated the Companies Amendment (Ordinance), 2018 (hereinafter referred to as the “Ordinance”) on November 2, 2018 after receiving the assent from the President of India.[1] The said ordinance has been brought into effect with the twin objectives of promotion of ease of doing business within the country along with better corporate compliance. Some of the aspects aimed at being covered under the said ordinance are;

·         Reduction of burden: Shifting of jurisdiction of 16 types of corporate offences from the special courts to in-house adjudication, which is expected to reduce the case load of Special Courts by over 60%, thereby enabling them to concentrate on serious corporate offences.

·         Easing penal provisions: The penalty for small companies and one-person companies has been reduced to half of that applicable to normal companies.

·         E-adjudication: Instituting a transparent and technology driven in-house adjudication mechanism on an online platform and publication of the orders on the website.

·         Strong regulation: Strengthening in-house adjudication mechanism by necessitating a concomitant order for making good the default at the time of levying penalty, to achieve the ultimate aim of achieving better compliance.

·         Unclogging of NCLT: To administer the legal affairs in respect to a company, the Government has provided the National Company Law Tribunal (also referred to as the “NCLT”) established for resolution of civil as well as criminal disputes thereto. Minimizing the burden on NCLT shall aid its focus on serious corporate offenses. Some of the measures taken to de-clog NCLT are:

          i.            enlarging the pecuniary jurisdiction of Regional Director by enhancing the limit up to INR 25,00,000 as against earlier limit of INR 5,00,000 under Section 441 of the Act;
        ii.            vesting in the Central Government the power to approve the alteration in the financial year of a company under section 2(41); and
      iii.            vesting the Central Government, the power to approve cases of conversion of public companies into private companies.

·         Curbing Shell companies: Shell companies are the non-trading entities incorporated under the multiple layers of subsidiary companies which be used as device to effectuate illegal transactions such as tax evasion, money laundering etc. Declaration of commencement of business provision has been re-introduced to better tackle the menace of shell companies.