ISSN 2582-4244 THE NUALS INTELLECtual PROPERTY LAW REVIEW VOluME II 2019-2020 Centre for Intellectual Property Rights, The National University of Advanced Legal Studies, Kochi THE NUALS INTELLECTUAL PROPERTY LAW REVIEW VISITOR, NUALS HON’BLE MR. JUSTICE K.M. JOSEPH JUDGE, SUPREME COURT OF INDIA CHANCELLOR, NUALS HON’BLE MR. JUSTICE S. MANIKUMAR CHIEF JUSTICE, HIGH COURT OF KERALA PRO-CHANCELLOR, NUALS DR. K.T. JALEEL HON’BLE MINISTER FOR HIGHER EDUCATION, GOVERNMENT OF KERALA VICE-CHANCELLOR, NUALS PROF. (DR.) K.C. SUNNY DIRECTOR (I/C), CENTRE FOR INTELLECTUAL PROPERTY RIGHTS DR. ATHIRA P.S A PEER-REVIEWED PUBLICATION OF THE CENTRE FOR INTELLECTUAL PROPERTY RIGHTS THE NATIONAL UNIVERSITY OF ADVANCED LEGAL STUDIES, KOCHI EDITORIAL ADVISORY BOARD PROF. (DR.) V.C. VIVEKANANDAN PROF. (DR.) BISMI GOPALAKRISHNAN DR. ARUL GEORGE SCARIA ADV. MANOJ PILLAI ADV. RAGHUL SUDHEESH ADV. SWAPNA SUNDAR FACULTY BOARD OF EDITORS DR. ATHIRA P.S. PROF. (DR.) M.C. VALSON PROF. (DR.) MINI S. DR. LIJI SAMUEL DR. ASIF E. STUDENT BOARD OF EDITORS EDITOR-IN-CHIEF PRANAV VALIATHAN PILLAI DEPUTY EDITOR-IN-CHIEF SMRUTHI PRAHALADAN STUDENT EDITORS ANAGHA PRASAD JEMIMAH ELIZABETH MATHEW SHASHWAT BHASKAR TREESA ANN BENNY APARNA S. SUHAN S. R. ANANTHESH DHARSHINI SUGUMARAN MEKHA VIJAYAKUMAR ERIKA JUDITH BIVERA ii DISCLAIMER The views and opinions expressed in the NUALS Intellectual Property Law Review are strictly those of the authors. All efforts have been taken to ensure that no mistakes or errors creep into this peer-reviewed journal. Discrepancies, if any, are inadvertent. * iii PREFACE The Centre for Intellectual Property Rights, established in 2015, has through its multi-faceted ventures, strived to promote scholarship in intellectual property laws since its inception. The NUALS Intellectual Property Law Review published by the Centre, is a peer-reviewed, double blind and open access journal. The first issue, published in 2019, introduced discourse on certain themes of contemporary relevance. The present volume takes the journey forward in the study of ever-evolving contours of intellectual property rights. This issue is a testament to the diversity and variedness of the subject as well as its far-reaching implications in the human existence. The article Discussing IPR Issues When AI is the Author: A Bird’s Eye Perspective, authored by Prof. (Dr.) G.B. Reddy and Ms. Sai Bhavana Vemuri is a foray into the challenges thrown the way of intellectual property jurisprudence by developments in Artificial Intelligence and Machine Learning, particularly in the domain of copyrights. The article highlights the current approaches adopted to deal with the challenges, while reconnoitring the possibility of internationally accepted and conventional norms as a potential path-finding mechanism. Trends of Artificial Intelligence Patent Filing: Indian Scenario & Its Legal Aspects by Ms. Vijitha Rajan, Ms. Sreelakshmi M.S and Dr. I.G Rathish explores the trend of AI patents in India, particularly in the signal processing technology domain. By an empirical analysis of patents that have been granted, rejected or are pending, the authors attempt to present a picture on the Indian presence in this field. Implications of the Prius Judgment for Trans-Border Reputation and Passing-Off in India by Mr. Rajendra Kumar and Ms. Aishwarya Menon is a critical review of the Prius Trademark dispute. The authors delve into the core of the Universality principle v. Territoriality Doctrine and question the departure from the earlier Whirlpool and Milmet Oftho decisions that laid the standard for determination of trans-border reputation in India. The next work, Interface of IPR with Genetic Resources and Associated Traditional Knowledge: International Provisions by Dr. Gargi Chakrabarti and Mr. Anand Kumar Singh investigates soundness and effectiveness of the international framework of protection of genetic resources within and outside the scope of intellectual property rights. The article effectively compares the mechanisms and ethos of the CBD and TRIPS and scrutinizes iv possible measures to prevent misappropriation and exploitation of the culturally, politically, economically and socially relevant genetic resources. Dr. Mouri Ghosh, through Pharmaceutical Patents: Weighing Intellectual Property Rights on the Human Rights Scale, explores the interrelationship between two seemingly conflicting domains. The author surveys the increasing encroachment of Beyond-TRIPS standards that seem to reflect the priorities that are apparently an element of bilateral treaties entered into by many developing countries in recent times. The Distinctiveness of Colour Trademark: European and Russian Experience by Mr. Konstantin Voropaev compares the standards of granting non-traditional trademarks, particularly colour trademarks in Europe as well as Russia. The article is an investigation into the tests of distinctiveness that have been applied in the two jurisdictions to determine the validity of such marks. Changing Regulatory Anti-Trust Attitudes towards High-Technology by Ms. Meghna Sharma and Mr. Prashant Singh is an attempt to understand the licensing practices in technology- intensive sectors such as telecommunication as well as the possibilities of patent abuses. The paper also affords a comparative point of view across jurisdictions that present wide-ranging opportunities for evolving feasible safeguards and solutions. Comments on the Draft Geographical Indications Guidelines: Implications and Discrepancies by Mr. Sulok S.K is a critical evaluation of the Draft Guidelines for the use of Geographical Indications Logo and Tagline issued by the Ministry of Commerce and Industry, India. The article highlights the merits and demerits of the guidelines, while raising pertinent questions such as the potential claims of differential standards of treatment between foreign and indigenous GIs and TRIPS-compatibility of the same. Through their article, Facets of IP in the Sports & E-Sports Industry: Traversing Horizons, Mr. Arnav Bishnoi and Mr. Achint Johri probe into the status of right of publicity vis-a-vis ubiquitous sports franchises and the ever-escalating E-Sports industry. The authors trace the evolution of sports as an industry and a business and iterate the numerous points of involvement of various aspects of intellectual property rights in these domains. Relevant today, perhaps more than ever, is the fundamental and inalienable nature of the right to health and the corresponding duties it imposes on States. In the article, Price Control v on Patented Drugs in India, Ms. Manisha Bhau explores fundamental iniquities and power imbalances that affect drug pricing in India and explores the might and right of the Indian State in controlling prices of drugs, particularly patented ones. Online Intermediary Liability and Copyright Infringement: A Comparative Study of the Framework in India and USA by Ms. Amala G. And Ms. Ananya K. comprehensively contrasts the scope of determining online intermediary liability in cases involving copyright infringement between the Indian combination of legislations on copyright protection and information technology as well as the American instrument of DMCA. The authors argue for a more harmonious approach in resolving potential conflicts between intermediaries, copyright owners and users of internet and illustrate workable scenarios. I would like to thank the Hon’ble Vice-Chancellor, NUALS, Prof. (Dr.) K C Sunny for his constant support and astute guidance. The Centre is grateful to all the authors of articles that are a part of this issue, as well as everyone who has contributed to the publication of the same. In particular, we would like to thank the members of our Advisory as well as Editorial Boards for their valuable suggestions and assistance. We also place on record our thanks to the panel of reviewers for their invaluable contributions. DR. ATHIRA P.S DIRECTOR (I/C), CENTRE FOR INTELLECTUAL PROPERTY RIGHTS NATIONAL UNIVERSITY OF ADVANCED LEGAL STUDIES vi EDITORIAL NOTE With the world in the throes of a pandemic as this volume is published, it is natural for the reader to wonder about the role of an intellectual property law review in this time. It is, however, in this very circumstance of cataclysmic change that we must look forward and deliberate on what our collective vision of the future is. From the potential use of artificial intelligence in helping researchers predict and prevent the next pandemic, to the role of pharmaceuticals in shoring up grossly exposed healthcare systems, the importance of IPR as a sphere of study cannot be overstated. This significance may be symbolised by countries across the world preparing for an eventual vaccine by introducing legislation for compulsory licensing, or by the calls for establishment of patent pools for potential Covid-19 treatments. With two (or more) faces to every issue, it is imperative that the IP community engages in debate and finds the most viable way forward for society. By providing an open platform for discussion on a wide-range of contemporary issues, this journal seeks to drive the conversation on issues that are at the forefront of IPR and technology, thus contributing in some way to finding solutions to complex problems. This edition of our journal has received submissions on a broad spectrum of novel topics, ranging from discussions on the legal conundrums that arise from artificial intelligence, to the role of IP in the nascent e-gaming industry. I thank all the authors who submitted their work to us; it is their fresh perspective into the issues that we face that makes this process rewarding. The publication of this volume also marks the culmination of a year of considerable progress for the journal. A renovated version of our IP blog is now up and running and has seen several engaging contributions from a variety of authors. I thank Smruthi Prahaladan who helmed this effort, and the team of editors who supported us in this endeavour. With the journal being open-access a part of our core ethos, we have migrated to a new website with the emphasis being on ease-of-access and improved readability of the published works. A special thanks to Suhan S.