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INFORMED ANALYSIS JUNE-JULY 2021 • VOL 13 ISSUE 06 IP Experts 2021 Japan AsiaIPINFORMED ANALYSIS JUNE-JULY 2021 • VOL 13 ISSUE 06 IP Experts 2021 Japan THE IPAB ABOLITION INSIGHTS FROM INDIA When the Intellectual Property Appellate Board was suddenly abolished in April, lawyers across India were taken by surprise. THE GROWTH OF THE UNTOUCHABLES SECURING INTANGIBLES: NON-FUNGIBLE TOKENS Amidst social distancing in the THE MONEY MADE ME DO IT Collectors have gone crazy over non-fungible tokens, Covid-19 pandemic, Chinese If you fail to protect your intangible a blockchain-driven authentication technology netizens have found significant assets, they will come to be increasingly used in crypto collectibles. But before you comfort by interacting with possessed by evil entities such as dive right in to buy the latest CryptoPunks card, you their favourite animated trolls, and that can cost a fortune. should know just what you’re actually buying. characters online. CONTENTS 4 COVER STORY THE IPAB ABOLITION INSIGHTS FROM INDIA When the Intellectual Property Appellate Board was suddenly abolished in April, lawyers across India were taken by surprise. —ESPIE ANGELICA A. DE LEON TABLE OF CONTENTS 4 | OPINION 23 | FEATURES The shuttering of the IPAB 7 key IP strategies in the 46 | FEATURES Philippines Trademark, copyright and 11 | FEATURES In this digital age, intangible assets, the racism of Dr. Seuss The growth of non-fungible including intellectual property rights, are When the estate of Dr. Seuss pulled six tokens proving to be more valuable to businesses of the author’s books for children due to Collectors have gone crazy over non- than tangible assets.—SUSAN D. VILLANUEVA, changing societal norms, some fans were fungible tokens, a blockchain-driven PATRICIA A. O. BUNYE AND ANDREA Y. ALEGRE outraged.—EXCEL V. DYQUIANGCO authentication technology increasingly used CORRESPONDENTS in crypto collectibles. But before you dive 27 | FEATURES 49 | right in to buy the latest CryptoPunks card, IP strategies for ASEAN you should know just what you’re actually educational institutions • Favipiravir: Patent rejection in Thailand buying.—EXCEL V. DYQUIANGCO in the Philippines India As the Philippines works towards • Can you protect your IP with an NDA? 16 | FEATURES fulfilling the United Nations’ Sustainable • Is India “foreign decree enforceable The Untouchables Development Goals – including one aimed friendly”? Amidst social distancing in the Covid-19 at promoting quality education – EDITHA R. pandemic, Chinese netizens have found HECHANOVA AND MISAEL F. COSTES significant comfort by interacting with their favourite animated characters online.— 32 | FEATURES JOHNNY CHAN IP Experts 2021: Japan 20 | FEATURES 42 | FEATURES Securing intangibles: Moving images: The money made me do it A new wave of If you fail to protect your intangible assets, advertisement they will come to be possessed by evil As brand owners become increasingly entities such as trolls, and that can cost a creative with their use of moving images in fortune.—JOHNNY CHAN their logos, lawyers around the region have devised a variety of ways to protect those moving images.—EXCEL V. DYQUIANGCO 2 Asia IP JUNE-JULY 2021 OPINION JUNE-JULY 2021 VOLUME 13, ISSUE 06 ISSN: 2072-3229 MANAGING EDITOR Gregory Glass T: +852 3996 9541 E: [email protected] STAFF WRITERS Johnny Chan E: [email protected] Espie Angelica A. de Leon The shuttering of the IPAB E: [email protected] Excel Dyquiangco obody expected India’s Intellectual Property Appellate Board to be E: [email protected] N summarily abolished in April. CREATIVE DIRECTOR Having only reached the young age of 18, the IPAB had been created Richard Arroyo in 2003 as part of India’s accession to the TRIPS Treaty – the Agreement HEAD OF BUSINESS DEVELOPMENT on Trade-Related Aspects of Intellectual Property Rights. The IPAB was Patrick Chu established in order to ensure the speedy disposal of appeals and other E: [email protected] matters in relation to trademarks, patents, geographical indications and BUSINESS DEVELOPMENT MANAGER copyrights. It was, as many commentators have noted in its passing, Isaac Man designed to create a single forum to serve four disparate areas of E: [email protected] intellectual property rights. MARKETING & EVENTS MANAGER One of our first jobs in legal media – while still at a previous Hok Yin Yiu employer – was to compile statistics from the IPAB and publish them in E: [email protected] a simple format, easy-to-find and understand in each of our quarterly CONTRIBUTORS India supplements. It was hardly the exciting, high-minded journalism Andrea Y. Alegre, Patricia A.O. Bunye, Misael F. Costes, Editha Hechanova, one hopes to undertake after moving halfway across the planet to Puwin Keera, Denise Mirandah, D.P.S. Hong Kong, but even then, in the IPAB’s early days, it was clear that the Parmar, Archana Shanker, Priya board was doing important work in India, bringing together a panel of Singh, Susan D. Villanueva intellectual property experts to decide the country’s key intellectual OFFICE MANAGER property cases. It was, many said, India’s entry to the big leagues of Edna Chow IP protection. After all, India was following jurisdictions including the PUBLISHER United States, the European Union, Japan and South Korea in creating a Darren Barton separate, intellectual property-only tribunal. T: +852 3996 9540 E: [email protected] The IPAB ruled from across the country, from benches in Ahmedabad, Chennai, New Delhi, Kolkata and Mumbai, and was among CONTACT US the first Indian institutions to adapt to the Covid-19 pandemic in 2020, EDITORIAL when it almost at once adopted a virtual hearings system and an online E: [email protected] filing system. SUBSCRIPTIONS/CUSTOMER SERVICE Where the IPAB was innovative, it was also effective. Statistics E: [email protected] suggest that only about 3 percent of cases decided by the IPAB have been ADVERTISING appealed, and that less than 1 percent of its decisions have been reversed E: [email protected] on appeal. India’s Supreme Court usually upheld decisions coming from the IPAB. PUBLISHED BY We spoke with lawyers across the country about what the IPAB’s abolition will mean for intellectual property rights owners. Although the Delhi High Court did announce in July that it would launch an IP division, Apex Asia Media Limited 21/F Gold Shine Tower many lawyers are concerned how the country’s other high courts will 346-348 Queen’s Road Central Hong Kong handle the void – and whether they will be able to handle the workload. T: +852 3996 9540 F: +852 3015 8136 Don’t miss this story, inside this issue of Asia IP. E: [email protected] W: www.asiaiplaw.com © Apex Asia Media Limited 2021 DISCLAIMER The copyright of this magazine is held by the publisher. No part may be reproduced, copied, or stored in a retrieval system without the prior written consent of the publisher. The material in this magazine does not constitute advice and no liability is assumed in relation to it. The views expressed in this magazine are the views of the respective Darren Barton Gregory Glass authors, and do not necessarily reflect the views of the publisher, its staff, or members of the editorial board. PUBLISHER MANAGING EDITOR SUBSCRIBE TODAY Asia IP is published 10 times per year, with subscriptions costing US$595 per year. To subscribe, use one of the following channels Subscribe at www.asiaiplaw.com to start your subscription immediately Call +852 3996 9540 [email protected] Subscribe today to gain the intelligence you need to protect your IP assets in Asia JUNE-JULY 2021 Asia IP 3 COVER STORY The IPAB abolition Insights from India 4 Asia IP JUNE-JULY 2021 WHEN THE INTELLECTUAL PROPERTY APPELLATE BOARD WAS SUDDENLY ABOLISHED IN APRIL, LAWYERS ACROSS INDIA WERE TAKEN BY SURPRISE. ESPIE ANGELICA A. DE LEON FINDS OUT JUST WHAT LAWYERS ARE THINKING OF ITS ABOLITION IN THIS EULOGY TO THE IPAB. n April 4, 2021, the Central Government of India promulgated The Tribunals Reforms (Rationalization And Conditions Of Service) Ordinance. OThe objectives of the ordinance are, among others, 1) to provide a mechanism for filing appeals directly to the high courts, 2) dissolve tribunals found to be unnecessary, 3) hasten the resolution of cases and delivery of justice at low cost, 4) reduce expenditures on infrastructure and operational expenses and 5) address the shortage of supporting staff of tribunals and infrastructure including delays in the appointment of technical members. Among those that were dissolved under the ordinance was the Intellectual Property Appellate Board (IPAB). With this, all pending cases before the IPAB will be transferred to India’s high courts. IP lawyers in India were surprised at this development. They believe the IPAB, despite its flaws, should not have been abolished at all. The IPAB: Beginnings and early challenges Established in 2003 by virtue of the Trade Marks Act, 1999 Section 83, the IPAB also served as an additional forum where cancellation/rectification proceedings could be filed, aside from being an appellate tribunal. “The legislative intent behind setting up the IPAB was to speed up the process of justice by having specialists on the panel and by having more straightforward procedural requirements,” said Sonal Madan, a partner at Chadha & Chadha in New Delhi. “However, the purpose was lost along the way.” JUNE-JULY 2021 Asia IP 5 COVER STORY SUBSCRIBER-ONLY CONTENT For one, delaysThis in thecontent appointment is reserved of both forCan our the high registered courts handle users it? technical and judicial members resulted inand/or prolonged subscribers “In my view, while the high courts could effectively act periods where the board became non-functional. on appeals and invalidity actions, given their existing The IPAB had both judicial and technical members workload, expecting any high court judge to now also for patent-related cases.
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