Monthly Archives: December 2012

Brand Protection And Enforcement Services In India

Brands have become an integral part of a corporate functioning. Brands have tremendous commercial value as they help in distinguishing the goods or services of one individual or company from the other individual/company.

Naturally, companies and individuals need to protect brands from imitation, unauthorised copying, unfair competition, etc. Brands are typically protected through intellectual property rights (IPRs) protection in the form of trademarks, designs, etc. a brand may consist of a name, term, design, symbol, or any other feature that identifies one seller’s good or service as distinct from those of other sellers.

With the active use of Internet for various personal and commercial purposes, brand protection has become a tedious and challenging job. In fact, online brand and reputation protection has got nasty and many online brand and reputation companies are using illegal and unethical means to protect brands of their clients.

Brand protection has got a totally new meaning with the introduction of new generic top level domains (new gTLDs) by ICANN. Trademark and brand protection under new gTLDs registration by ICANN is a very challenging aspect. Further, the stakes are high and a techno legal strategy to protect brands under the new gTLDs regime is a must.

As far as India is concerned, an effective brand enforcement policy is needed in India. Individuals and companies must formulate techno legal policies to protect their brands in India. However, illegal and unethical methods must be avoided.

LPO/foreign lawyers are now not allowed to provide legal services in India any more. This includes brand protection services as well. Now only purely Indian lawyers based law firms and LPOs in India can provide litigation, non litigation, agreement drafting, consultancy, brand protection and enforcement services in India.

The awareness among various stakeholders is increasing and very soon we would witness growing demand for brand protection and management services in India.

Source: Techno Legal News.

Trademark And Brand Protection Under New GTLDs Registration By ICANN

Of late trademark, goodwill and brand protection has become an essential part of corporate strategy. Individuals and organisations are exploring both legal and non legal methods to protect their trademarks, brands and goodwill. Further, information and communication technology (ICT) has raised novel online brand and reputation protection challenges across the globe, including India.

A good and effective brand enforcement policy is needed in India to safeguards the trademarks, brands and goodwill of Indian individuals and companies. This policy must adopt sound and legally sustainable methods alone to protect brands of their owners. For instance, online brand and reputation protection has got nasty in the recent times. Brand owners are using methods that are not legal and for protecting their brands they themselves are violating the laws of various jurisdictions.

A very significant event has recently taken place that may affect the brands of many stakeholders. ICANN’s new generic top level domain names (new GTLDs) registration has begun and is in full progress. It may violate the brands, trademarks, tradenames, etc of many owners in India, both intentionally and unintentionally.

However, we have no dedicated domain name protection law in India. Domain name protection in India is still provided under the trademark law of India. This is not an appropriate situation as a dedicated domain name protection law In India needed. This has become more important as the registration of new GTLDs would create more legal problems in future.

For instance, independent objector and legal rights objections for ICANN’s new GTLDs would be there. This has been done to resolve ownership disputes that may arise during the granting of new GTLDs. Although legal rights objection assistance for new GTLDs by Perry4Law would be provided yet we believe a full fledged and separate legislation for domain name and brand protection in India is urgently required.

The domain names, new GTLDs, ICANN and disputes resolutions require a focused approach on the part of Indian stakeholders in general and Indian government in particular. The sooner we understand this reality the better we would be equipped to safeguard our digital assets.

Source: Intellectual Property Rights Services In India.

FDI In Satellites And Private Security Agencies Sectors Of India Under Consolidated FDI Policy Of India 2012

This is in continuance of our series on consolidated FDI policy of India 2012 by DIPP. The previous articles in this regard are:

(1) Consolidated FDI policy of India 2012 by DIPP: objectives,

(2) Consolidated FDI policy of India 2012 by DIPP: definitions,

(3) Consolidated FDI policy of India 2012 by DIPP: general provisions,

(4) FDI in limited liability partnerships (LLPs) in India 2012,

(5) Permissible direct and indirect foreign investment in an Indian company,

(6) Foreign investment promotion board (FIPB) and FDI policy of India 2012,

(7) Prohibited sectors under the consolidated FDI policy of India 2012,

(8) FDI in agriculture and animal husbandry under consolidated FDI policy of India 2012,

(9) FDI in mining sector of India under consolidated FDI policy of India 2012,

(10) FDI in petroleum and natural gas sector of India under consolidated FDI policy of India 2012

(11) FDI in micro and small enterprises (MSEs) sector of India under consolidated FDI policy of India 2012

(12) FDI in defence sector of India under consolidated FDI policy of India 2012

(13) FDI in broadcasting sector of India under consolidated FDI policy of India 2012

(14) FDI in print media sector of India under consolidated FDI policy of India 2012

(15) FDI in civil aviation sector of India under consolidated FDI policy Of India 2012

(16) FDI in courier services sector of India under consolidated FDI policy of India 2012

(17) FDI in construction development sector of India under consolidated FDI policy of India 2012

(18) FDI in industrial parks segment of India under consolidated FDI policy of India 2012

In this article Perry4Law and Perry4Law Techno Legal Base (PTLB) would discuss the FDI limits in satellites and private security agencies sectors Of India under consolidated FDI policy of India 2012.

FDI in satellites, including their establishment and operation and subject to the sectoral guidelines of Department of Space/ISRO, is permissible upto 74% through government approval route.

Further, FDI in private security agencies is allowed upto 49 % through government approval route.

Source: Corporate Laws In India.

RBI Working Group On Information Security, Electronic Banking, Technology Risk Management and Cyber Frauds

Reserve Bank of India (RBI) has been streamlining the Financial and Banking Sector of India. It is very apparent if we look at the recent Policy Decisions made by RBI from time to time. Although all of these Policy Decisions are good yet one aspect that requires a special mention is the constitution of RBI Working Group on Information Security, Electronic Banking, Technology Risk Management and Cyber Frauds (Working Group).

The Working Group submitted its report in the recent past upon which public inputs were invited. After analysing the public inputs, the final draft has been recently released and notified by the RBI.

RBI has also directed that all banks would have to create a position of Chief Information Officers (CIOs) as well as Steering Committees on Information Security at the board level at the earliest. This direction was provided through the Information Technology Vision Document for 2011-17 (IT Vision 2011-17) and the recent notification of the draft report. This document has suggested many technological as well as legal reforms for banking sector of India.

Although the direction to have CIOs and Steering Committee is very clear yet till now banks in India has failed to comply with this direction. RBI said that the banks need to ensure implementation of basic IT organisational framework and put in place policies and procedures which do not require extensive budgetary support, infrastructural or technology changes, by October 31, 2011. The rest of the guidelines need to be implemented within period of one year unless a longer time-frame is indicated.

Banks in India need to formulate a Cyber Security Policy as soon as possible. Cyber Security Policy is an issue that is very important for Banks of India. With the growing use of Internet Banking, ATM machines, Credit and Debit Cards, Online Banking, etc, Banks of India must also upgrade their Cyber Security Infrastructure and establish a Cyber Security Policy.

Banks and Financial Institutions must regularly engage in “Forensics Audit” and “Incidence response”. Presently, Banks and Financial Institutions engage in these “Essential Exercises” when something fraudulent or wrong have already taken place. If Banks and Financial Institutions conduct regular Cyber Due Diligence then incidences like Citibank Fraud Case could be minimised.

Perry4Law and Perry4Law’s Techno Legal Base (PTLB) have been analysing these issues for long and they have been providing their suggestions in this regard. We believe that RBI must play a more pro active role in analysing whether its Policies and Recommendations are duly complied with. It seems the Recommendations of the Working Group constituted by RBI have still not been implemented. A “Progress Report” must be sought from Banks of India in this regard by RBI as soon as possible.

Source: ICTPS Blog.

Legal Issues Of Establishing An E-Commerce Website In India

E-commerce laws in India  are still scatters and uncertain. On top of it we have very few e-commerce law firms in India that are providing e-commerce related legal services. Even public awareness about legal issues of e-commerce is missing in India.

Some are violating Indian laws out of sheer ignorance while other are actively violating Indian laws while engaging in e-commerce activities. Recently it was declared that Indian government would ascertain beneficiary in Walmart probe to ascertain possible violation of Indian laws.

However, what is most surprising is the fact that almost all e-commerce players believe that starting of an e-commerce business in India does not require any legal compliance. The truth is that there are many legal requirements to start an e-commerce website in India. If e-commerce portals fail to comply with these legal requirements they can be prosecuted as well.

Besides there are many legal formalities required for starting e-commerce business in India. Since technology is an essential part of any e-commerce business, cyber law due diligence in India is also required to be followed by e-commerce portals. Various cyber due diligence for Indian companies have been provided by the cyber law of India that are stringent in nature.

Business structuring of e-commerce in India must be undertaken in a techno legal manner and legal issues of online shopping in India must be integral part of the same. In the ultimate analysis Indian e-commerce, FDI regulations and cyber due diligence are interrelated and the same must be taken very seriously.

Source: Techno Legal Thoughts.

Legal Issues Of Internet Banking In India

Internet banking is a popular and convenient method of doing online banking transactions. We have no dedicated Internet banking laws in India but the Reserve Bank of India (RBI) has issued some guidelines in this regard. However, Internet banking guidelines in India by RBI are not sufficient to make the banks follow robust and required cyber security procedures.

This means that Internet banking risks in India are high and even RBI acknowledged risks of e-banking in India.  Despite this position, banks in India are ignoring the cyber security due diligence requirements prescribed by RBI. The online banking risks in India have increased tremendously due to this position.

RBI has also released a report of the RBI working group on securing card present transaction in order to provide preventive measures for ATM frauds in India. Sill Internet banking frauds in India and ATM Frauds are increasing. Banks in India are not serious about cyber security and they are not following the recommendations of RBI.

RBI has also insisted upon ensuring of cyber security of banks in India. In fact, recently RBI warned Indian banks for inadequate cyber security as well. This is resulting in increased financial crimes and cyber crimes in India. Mobile banking cyber security in India is also at risk.

The legal issues of Internet banking in India must be taken more seriously by all stakeholders especially the Indian banks. However, better results cannot be achieved till cyber security requirements made mandatory on the part of Indian banks.

Source: PTLB Blog.

ATM Frauds Prevention In India: Legal And Technical Methods

ATM Frauds in India are increasing at an alarming rate. If we add to it the cases of Credit Card Frauds, Internet Banking Frauds and frauds committed using Phishing techniques, the numbers are really shocking.

It is not the case that Reserve Bank of India (RBI) is not aware of these cases nor is it the case that RBI is not doing anything in this regard. In fact, RBI has recently released the Report of its Working Group on Securing Card Present Transaction that covers ATM Security and Credit Card Security issues as well.

RBI has also recommended Cyber Security Due Diligence for Banks of India. However, despites these pro active steps, ATM Frauds are increasing in India. One chief reason for this growth is that Banks in India are not serious about Cyber Security and they are not following the Recommendations of RBI.

ATM Frauds happen when someone leaves his/her credit card unattended in a vehicle or changing room or allows anyone else to use the card or looses the card that is misused by others or discloses the Personal Identification Number (PIN) to others, etc. These mistakes allow the offender to withdraw money by using the stolen information. Fraudsters are using special devices, skimmers, duplicate ATMs, etc to withdraw money from ATMs. Sometimes such frauds are an insider job with the collusion of the employees of the company issuing those cards. However, misuse of the disclosed PIN for withdrawing money is the most common techniques used for committing ATM Frauds.

ATM Frauds can be prevented if we take some basic level precautions. For instance, never leave your credit card unattended in a vehicle or changing room, never allow anyone else to use your card, always retain sales/charge slips to compare with the amount specified on the billing statement, do not disclose your PIN to anyone, etc.

The Technology can also be used to minimise cases of ATM Frauds in India. The technological mechanisms like Designated time, Microchip technology, Biometric tokens, Enhanced security, ATM Monitoring, Customised softwares, Customer motivation, Alerts, etc can be used to minimise and prevent ATM frauds in India.

Another reason for growth of technology related crimes and ATM Frauds in India is absence of “Deterrent Law” in this regard. The Information Technology Act, 2000 (IT Act 2000) is the sole Cyber Law of India. After the Information Technology Amendment Act, 2008 (IT Act 2008) almost all the Cyber Crimes in India have been made “Bailable” Now Cyber Criminals can commit almost all Cyber Crimes, ATM Frauds, Credit Card Frauds, Internet Banking Frauds in India without any fear. It is high time to repeal the Cyber Law of India as soon as possible and enact Strong and Effective Laws in this regard.

The IT Act, 2000 does not contain any specific provisions regarding ATM Frauds and Credit Card Frauds and the traditional law of IPC, 1860 also cannot be relied solely and independently to tackle this problem. We need a better law for this purpose and Perry4Law and Perry4Law’s Techno Legal Base (PTLB) have already provided their Suggestions and Recommendations in this regard and other ICT related matters to the Government of India, Department of Information Technology, Department of Science and Technology, Prime Minister’s Office, etc from time to time.

Till we have suitable and apt laws, we must apply existing laws in a purposive and updating manner. However, ATM frauds can be tackled by using Techno Legal Methods alone and neither Legal nor Technical Measures is sufficient in itself.

Source: ICTPS Blog.

Online Sales Of Prescribed Medicines In India

By Geeta Dalal

Online sales and purchase are governed by electronic commerce transactions. We have no dedicated e-commerce laws and regulations in India. However, a basic level legal e-commerce framework has been provided by the Information Technology Act, 2000 (IT Act 2000) that is the cyber law of India.

While we have basic level e-commerce legal framework in India yet e-health related legal framework is missing. For instance, e-health in India is facing legal roadblocks. Till now we do not have any dedicated e-health laws and regulations in India. The legal enablement of e-health in India is urgently required.

When technology is used for medical purposes, it gives rise to medico legal and techno legal issues. In United States, the Health Insurance Portability and Accountability Act of 1996 (HIPAA), Health Information Technology for Economic and Clinical Health Act (HITECH Act), etc are some of the laws that take care of medico legal and techno legal issues of e-health and telemedicine.

As far as India is concerned, we have no dedicated e-health and telemedicine laws in India. Even essential attributes of these laws like privacy protection, data protection, data security, cyber security, confidentiality maintenance, etc are not governed by much needed dedicated laws.

Ordinary commodities can be comfortably sold through e-commerce websites. However, health related commodities, especially prescribed medicines and drugs, are not easy to manage in an online environment. This is the reason why we have almost nil online sales of prescribed drugs and medicines in India as on date.

We need a dedicated law regarding e-health in general and online sale and purchase of prescription drugs in particular. The laws that deal with sales of prescribed medicines and drugs were enacted many decades ago when information and communication technology (ICT) driven innovative e-commerce methods were not within the contemplation of the legislature. Naturally, these laws are silent about their applicability to online sale and purchase of prescription drugs and their online trading.

Till now many e-health players are not aware whether the present laws allows or disallows the buying and selling of medicines through websites. Though over-the-counter products are no problem, online trade of prescription medicines is a sensitive issue. There are far too many issues involved regarding safety and authenticity of online drug stores.

Most western countries have allowed online sale of medicines. Even China has recently allowed opening of online medical stores for its pharmaceutical industry when about 20 companies were given licenses in this regard and they are doing well. In India, most players are afraid of engaging in online sales of prescribed medicines because of the uncertainty in the legal framework. Time has come to enact a dedicated law that allows online sales and purchase of prescribed drugs and medicines in India.

Source: PTLB Blog.

Are Amazon, Google And Starbucks Playing With UK Tax Laws?

There is a big difference between tax management and tax avoidance. While the former is both legally and morally justified the latter does not meet either criterion. The desire to avoid tax is an offshoot of capitalist mentality and governments around the world must tackle this mentality as soon as possible.

A Committee of MPs in UK has accused senior executives from Amazon, Starbucks and Google of diverting hundreds of millions of pounds in UK profits to secretive tax havens. Public outrage followed after these accusations and it has already starting impacting these companies.

Starbucks has agreed to pay £20mn over the next two years, after coffee sales slumped under the weight of public protest. Similarly, Google fell out of the BrandIndex top10 list after it was accused of avoiding tax in UK. An online protest petition has also been initiated against Amazon for similar reasons.

UK taxpayers are increasingly frustrated by the use of tax havens and creative accounting by large firms trading in Britain. People want to know why companies which benefit from an infrastructure paid for by them and are paying people low wages who receive taxpayer-funded tax credits from the exchequer are not paying their fair share, tells a Committee member.

All three companies have been asked to supply further information to the Committee. Another Amazon executive will be asked to appear before the committee in two weeks to respond to unanswered questions.

Even in India, many multinationals have opened subsidiaries and are twisting and violating Indian laws. Not very late when the online content removal controversy erupted in India and Google, Facebook, Microsoft, Yahoo etc were summoned before Indian Court, Google India took the stand of being a subsidiary of parent company in US.

This is a wrong approach as both legal and moral aspects must be taken care of by multinational companies in India. Otherwise, there is no other option but to lift the “corporate veil” and make the subsidiaries liable for the acts or omissions of their parent companies.

Companies like Google and Facebook must comply with Indian laws and they should not invest much in evasive methods. These companies must also understand the Internet intermediary liability in India that they are presently ignoring. In fact, Google is rightly held liable for defamatory contents by Australian Court recently. It is high time for Indian government to explore the tax avoidance angle as well.

Pirate Radios Can Jam Keyless Or Remote Car Entry Systems

In an interesting news it has been reported that keyless/remote car entry systems can be jammed by using pirate radios. A remote keyless system can include both a remote keyless entry system, which locks and unlocks the doors, and a remote keyless ignition system, which starts the engine.

In a remote keyless entry system when a button is pushed, it sends a coded signal by radio waves to a receiver unit in the car, which locks or unlocks the door. However, pirate radios can block and jam such signals from the remote keyless entry system. The term pirate radio means an illegal or unregulated radio transmission that is punishable in many countries across the world.

The present case pertains to the area coming under the jurisdiction of Hollywood Police Department. The residents of that locality could not use their keyless entry systems to unlock or start their cars whenever they parked their vehicles near the Hollywood Police Department. Once the cars were towed to the dealers, the problem was resolved as the vehicles were well beyond the jamming area.

The police did the preliminary investigation and it discovered an illegal pirate radio station that was jamming the signal from keyless entry systems of several makes of cars. The police believe that the man behind the bootleg operation likely had no idea it would lock people out of their cars. If found, the man could be arrested on felony charges and face a fine of at least $10,000 from the Federal Communications Commission.

An undercover detective and FCC agent found the equipment on Dec. 6 concealed under an air conditioning chiller. Most drivers were forced to read their owner’s manual to learn how to access their manual key.