Brand Management and I.P.R during COVID-19

COVID is affecting every part of our day by day lives. Aside from the wellbeing is in critical condition, it has been upsetting our social and financial way of life or a piece of it. Amid this circumstance, there’s one thing which remains all the more remarkable & powerful and that is Intellectual Property and the changes in brand management, and it’s basic for us to acknowledge it.

Introduction

Every government in this world irrespective of whether at the centre or state are doing everything in its power to fight off the adversities of this epidemic. Mankind is trying to use every medicine, drug, or herbs known to humans in fighting off this virus.

In a matter to reduce the effects of the outbreak, the Government of India as well as numerous State Governments have implemented notifications as well as advisories whereby making an exception for essential commodities which includes food and other edible items, medicines and medical equipment, manufacturing, and selling of which has been permitted by the Government. But these notifications have caused a flood of counterfeit products in the market under the umbrella government permit.

In the wave of these notifications, IPR infringement and Brand Protection becomes an integral part of the current scenario. With the Hon’ble Courts having limited functioning, and only urgent matters being taken up by the Hon’ble Courts across the country, there is a very high likelihood that entities, as well as individuals, would not hesitate in using the present time of minimal judicial overwatch for their nefarious activities. The said entities or individuals could supply counterfeit and infringing products in the market, thereby making unfair gains for themselves and further causing untoward losses to the well-established players in the market. The same could also deprive established brands of taking stringent actions against such violators and counterfeiters [1].

I.P.R during COVID-19

At this time of hardship, world organizations and countries should not be afraid of using the powers vested in them by provisions written in their Intellectual Property Rights Acts and save the lives of their people.

Many Countries like Chile, Israel, Germany, Canada, and France have proactively worked on it and eased their laws, even enacted new laws to favor Compulsory Licenses to be granted to effectively use, produce and sell any medicine or vaccine protected by IPR in that country.

Luckily India has certain provisions in its Patent Acts that allow the Central Government to take over any patent that can be of use in a state of national emergency or circumstances of extreme urgency under Section 100 and 102 of the Patents Act, 1970. The provision of compulsory licenses can also be availed if a potential IP is of use in a state of a public health crisis or against any epidemic under Section 92 of the Patents Act, 1970 [2].

But even if the government is taking over the patents and researches to develop the vaccine over the coronavirus, they should see, the interests of the researchers and research organizations should also be safeguarded. But, the owner company should not also exploit this situation by benefiting themselves, they should be under their CSR responsibilities.

Many companies in the pharmaceuticals business like AbbVie have announced that it will not enforce its patents on lopinavir, an antiviral drug of interest against COVID-19. Gilead has also sought to rescind the seven-year orphan drug exclusivity period for remdesivir, another antiviral of interest. Closer home, the Serum Institute of India has announced it won’t file patent rights for the coronavirus-related research and manufacturing. Even anti-malarial drug hydroxychloroquine (HCQ) [3], which has gained vast popularity as a measure to fight against the COVID-19 outbreak, was taken over by the government of India for mass production to fit against the epidemic as per the patent act, 1970.

Big corporations like IBM, Microsoft, Amazon, Facebook, Hewlett Packard, and Sandia National Laboratories. They have taken open COVID pledge to free the use of their intellectual property (IP) to fight Covid-19 during the pandemic [4]. Start-up companies may come forward to take advantage of this access and accelerate the development and deployment of diagnostics, vaccines, therapeutics, medical equipment, and software solutions in this urgent public health crisis (not to be monetized). 

Furthermore, many companies are using their patented work,  to recover their revenue losses due to lockdown: (a) incoming through royalties by licensing it; (b) Exploiting it through partnership /alliances; (c) Making money by selling it; (d) Suing the infringers.

If we talk about the disruptions caused by viruses in the registration of intellectual property, Patent offices around the world have allowed condonation of delay/extension of timelines to file responses and /or documents relating to various proceedings under the Patents legislation. For example, the patent office of India has canceled all hearings scheduled between March 23, 2020, and April 14, 2020, and have subsequently appointed hearings only through video conferencing, if agreed by the applicant. Japan Patent Office (JPO) and China National Intellectual Property Administration (CNIPA) have come up with a flexible approach for extension of the time limit under the Patent Law [5].

Branding during the COVID 19

Further, to prepare for the post COVID period, the government has already started the process of lucrative deals to promote their countries for investment, whereas for the industries, they have already started developing new techniques of rebranding themselves to increase their sales or promote their brand with a more pro positive image.

With most businesses in aviation, hospitality, travel, restaurants, clothing retail are being of shut down mode. But many other businesses have risen out from the ground with more pro –COVID consistency transformation ideas.

Many big companies like reliance industries, Walmart, Amazon have heavily invested in the food and retail market of India during the lockdown period, as in India, regional player and small traders heavily influenced the market as compared to the big corporation, so these corporations have created a strategic alliance with these traders and players to capture the retail food market.

The Indian e-grocery stores, such as BigBasket, Grofers, and Amazon India Pantry were allowed to continue supplying groceries, and have seen a skyrocketing rise of their app downloads and new customers in each of last months, as per MoEngage, an AI-based customer engagement platform [6].

If we talk about the entertainment platform, media platform has seen a surge of 20 % in their viewership, all digital media platforms, such as Amazon Prime, Hotstar, Netflix, Eros Now, Apple TV+, and the like, are luring viewers with new content for children and family, free shows relating to the coronavirus pandemic and complimentary subscriptions for Indian viewers [7]. Even, the state T.V Channel, Doordarshan, during the time of lockdown, have once again topped the charts of TRPs after a decade, by broadcasting its old shows, which were peculiarly much famous between the late 50s generations.

Another industry, which has shown significant changes in re-branding itself amidst the virus are packing and delivery industries, they have crater themselves according to norms provided by the government, they have started the concept of contactless delivery, cash transitions are restricted. Further, during the lockdown, they are also helping the needy people by providing essential services and transit services, for example, Rapido, a motorcycle cab services, during the post lockdown period were providing delivery services to people to send items from one place to another.

Similarly, Zomato was promoting its food delivery partners to provide as much food and services to people who were traveling back to their home grounds. further,  Zomato through its notifications has been informing its customers about the steps it took with restaurant and delivery partners on safety practices, besides launching contactless food delivery options for its users.

There was a revolutionary change happening in the digital payment industry during the lockdown and aftermath of the lockdown. Due to such restrictions, most digital payments systems noticed a significant rise in their traffic and payments. Razorpay witnessed an increase of about 10% in payment transactions between mid-February and mid-March only, merely due to online grocery shopping and online bill payments [8]. 

It is predicted contactless payments could be the next big thing, as people have now become more aware and cautious of the germ-ridden cash! Before the lock-down started in India, even WHO and RBI had strongly pushed for making use of digital payment systems, i.e., using online banking (including payment gateways), mobile wallets, cards, etc. to contain the spread of the coronavirus, and avoid modes of payments are not hygienic and safe. It does seem that the contactless payment modes would be preferred and become more widespread in the days to come.

These examples show how the brands are thinking out of the box and re-branding themselves, to maintain their presence amidst the coronavirus epidemic.

Conclusion

The post-COVID-19 era would witness an exponential increase in the branding channels through which commercial offerings would be offered and served. Further, the IP regimes have come up in their scientific ways to come together with a hope to eradicate the COVID-19 pandemic from the world.

It is also advisable that brands must be on the constant lookout for any fresh filings concerning Trade-Marks, Copyrights, designs, etc. which may be deceptively similar to the IP rights enjoyed by the said brands. Brands should also keep a lookout on any such filings being done under the same category and/or class to investigate any Passing-off and/or infringement that may take place during the lockdown period, and accordingly file their oppositions before the concerned Registrar offices recording their opposition towards grant of any such IP rights [10].

An example of the same was in the case of Hindustan Unilever Ltd. Vs. Reckitt Benckiser (India) Pvt. Ltd. [11]wherein Hindustan Unilever Ltd. filed a suit against Reckitt Benckiser before the Hon’ble High Court of Bombay, for disparagement and injunction, alleging that the advertisement being displayed by Reckitt Benckiser disparaged the product of HUL i.e. Lifebuoy Soap and was a mirror copy of the advertisement of HUL.

Further, it is also imperative upon brands to be on the lookout for any sort of disparagement and denigration of the brand name by way of comparative advertising. Therefore IPR infringement and Brand Protection must become an integral part of the current scenario to protect their IP assets.

FAQs:

  • Can the Government claim over the patented work in a time of crisis?

Yes, Government claims over the patented work in times of crisis. The Central Government to take over any patent that can be of use in a state of national emergency or circumstances of extreme urgency under Section 100 and 102 of the Patents Act, 1970.

  • How could a company earn profit from their patented work?

By the following, companies can earn profit from their patented  work:

(a) incoming through royalties by licensing it;

(b) Exploiting it through partnership /alliances;

(c) Making money by selling it;

(d) Suing the infringers.

  • Is there any relaxation provided by the Patent Office of India in filing petitions and hearings?

The patent office of India has canceled all hearings scheduled between March 23, 2020, and April 14, 2020, and have subsequently appointed hearings only through video conferencing, if agreed by the applicant.

  • What different ways E-commerce industries are using during COVID times for delivery of goods/services?

E-commerce industries are now focusing on delivering goods/ services through drones on a trial basis. They are trying to minimize their C.O.D option and promoting a cashless payment option.  Food delivery apps are now focusing on various other ways to deliver foods without any physical contact with the customer.

References


  1. IPR Infringement And Brand Protection Under COVID-19 Conditions,https://www.indialegallive.com/special-story/ipr-infringement-and-brand-protection-under-covid-19-conditions/.
  2. Patent act,1970, http://www.ipindia.nic.in/writereaddata/Portal/IPOAct/1_31_1_patent-act-1970-11march2015.pdf.
  3. contribution-of-ipr-regimes-in-fight-against-covid-19-pandemic, https://www.mondaq.com/india/patent/949744/contribution-of-ipr-regimes-in-fight-against-covid-19-pandemic-.
  4. The Open COVID Pledge (April 7, 2020) https://opencovidpledge.org/
  5. Cues to Indian Patent Office for Responding against COVID-19, https://www.lexorbis.com/cues-to-indian-patent-office-for-responding-against-covid-19/.
  6. https://www.moengage.com/blog/
  7. https://apptopia.com/
  8. Razorpay’s press release; available at https://www.outlookindia.com/newsscroll/coronavirus-leads-to-30-drop-in-online-travel-bookings-9-rise-in-grocery-purchase-razorpay/1773159
  9. Branding-in-the-times-of-COVID-19-and-what-lies-ahead, https://www.mondaq.com/india/operational-impacts-and-strategy/921448/branding-in-the-times-of-covid-19-and-what-lies-ahead.
  10.  Supra at 1.
  11. [COMPIST 300 of 2020].

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