Intellectual Property amidst COVID-19

COVID 19, short for Corona Virus Disease 2019 has taken the world by storm. Intellectual Property has also been affected. The outbreak of the pandemic saw the cancellation or postponement of various IP events namely the ‘MARQUES Spring Meeting, the IACC Annual conference, ICANN’s Mexico meeting, and the INTA annual meeting. Certain remedial measures were also taken by the World Intellectual Property Organization in light of the circumstances, such as automatically extending the time limits when the public cannot avail the National IP offices and also encouraging the use of electronic communication by brand owners to diminish or negate the unwarranted impact that could lead to disruptions in delivery or mail services. Steps were also taken by the United States Patent and Trademark Office who initiated the decision that on many IP communications an original handwritten signature wouldn’t be needed. [1]

How can Brands Protect their Intellectual Property in the Current Scenario?

Post COVID-19, the world has witnessed an upsurge in IPR infringement. Counterfeiting items have been the cause for misery for industries spread across India for a long time, but taking into account the current crisis, it is said to have increased tenfold. The Centre, as well as the states, have tried to tackle the pandemic as best as they can by issuing notifications and advising the people on what can and cannot be sold during these trying times. Essential commodities were permitted namely food, medicines, medical equipment, etc. But there is a threat of counterfeit products being sold as well in the market under false pretenses of having been given sanction by the Government.

Considering the present judicial system where only important cases are being heard by the Hon’ble Courts, fraudsters will take advantage of every opportunity presented before them to fraudulently sell counterfeit items. This would put the brand owners of the original product at a disadvantage. With lack of activity on part of the brand owners, counterfeiters will have ample scope to dupe the layman who will not be able to distinguish between real and fake products. The brands, in such times, can begin to identify the infringement taking place according to the protocols that have been put in place; the products that are being sold by the retailers, wholesalers should be examined for ascertaining their originality.

The whole supply chain should be warned of such practices and must be made aware of the helplines whom they can report to incase they witness any infringement, the manufacturers need to be warned of passing off practices, for advanced protection markings should be made in such a way on the products that only the manufacturers can find and determine their originality this shall help in identifying the counterfeit items circulating the market. Oppositions should be filed in the respective Registrar Offices against any filing made with respect to an IP owned by an established brand, the employees should be looking out for any signs of comparative advertising that can be detrimental to the brand.

In the case of Hindustan Unilever Ltd. Vs. Reckitt Benckiser (India) Pvt. Ltd.[2], where a suit claiming disparagement was filed by Hindustan Unilever, they alleged that the advertisement displayed by the opposite party disparaged their product which was lifebuoy soap and was also subsequently an exact copy of their own advertisement. For the purpose of proving counterfeiting it will be necessary for the brand owner or victim to produce at least one sample of the product that is counterfeited along with the proof of its sale as it will be impossible for investigation proceedings to take place in the pandemic. Also, raids cannot be ordered by the Courts in the area of production of the counterfeit goods, therefore at the beginning of the suit itself, the shutting down of the manufacturing facilities as well as destroying all the infringing products should be prayed for.

IP and Medicine

Countries and their leaders have been persevering to ease the availability of medicine to all to fight the pandemic. The EU’s sight seems to be set on the creation of a patent pool by purchasing COVID-19 related rights so as to make sure that patents don’t act as an obstacle. Compulsory licensing mechanisms are also being contemplated by various Nations to prevent the patent owner’s obstruction when his patented processes will be given over to third parties by the Government. But considering the austerity of the pandemic, many patent holders have joined hands to not restrict the use of their patents only to themselves.

For instance, AbbVie refuses to enforce exclusivity rights over lopinavir, which is an antiviral drug. Gilead has gone down the same path in its fight against the pandemic forsaking exclusivity on its drug remdesivir. India has also been the apple that has not fallen far from the tree of survival; the Serum Institute of India has rescinded the patent filing procedure for all the research and manufacturing undertaken by it in respect to COVID-19. There have also been some negative impacts such as stockpiling of medicines especially when they are so scarce in the developing countries, ineffective and fake face masks and medicines have been seized in Asia and Africa. The International Chamber of Commerce’s Business Action to Stop Counterfeiting and Piracy believe that there will be a surge in the production and selling of counterfeit goods in the current period of time.[3]

How Can Investors and Inventors Protect their Legal and Financial Rights

Negotiation procedures can be undertaken with the Government, rather than the Government directly enforcing Compulsory licenses where the patent rights holders have no say. This would be fair and justifiable as long as the rates are reasonable. Secondly, IP and Non-IP incentives should be looked into. Due to the lack of profits when it comes to vaccines, many biopharmaceutical companies don’t wish to get involved in the creation of such. This can be very harmful and subnormal. What the Government can do in such a case is to provide incentives to such companies as a method of drawing them in. A non-IP incentive that can be offered is roaming or transferable intellectual property rights whereby they can allow the company an IP right of an additional nature on a product of its choosing as long as it creates a product to fight the disease at hand. Another incentive could be in the form of a guarantee which the government provides to the company in terms of purchasing its creation; this commitment shall give a sense of assurance and confidence to the company to take part in the development process. The Government can also partake in funding research related to development.

The fight against COVID 19 is inevitable and the IP sector is battling the changing circumstances considering it is an unprecedented fight. The need for a policy can be seen as the laws may be insufficient to deal with the circumstances.

[1] Parul Malik, India:Global IP scenario under COVID-19, mondaq, accessed on (28th May, 2020)

[2] Hindustan Unilever Ltd. Vs. Reckitt Benckiser (India) Pvt. Ltd. [COMPIST 300 of 2020]

[3] How Intellectual property can strengthen our response to climate change and COVID -19, ICC, accessed on (28th May, 2020)

Gursimran Kaur from KIIT School of Law

You can find her here.

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