India Business Law Journal – April 2014

The population as a whole has myriad hopes and fears of what the elections may bring, while for India Inc, most observers agree that success lies in an outcome that delivers a decisive government with the ability to pursue an agenda of reform and the authority to instigate change. Only time will tell whether such an outcome will be forthcoming. The results are to be announced on 16 May.

In the meantime, we turn our attention to success of a different nature, this time in the realm of intellectual property (IP) protection. And seldom has success tasted so sweet. Our Cover story investigates an intriguing court ruling regarding the protection of geographical indication (GI) rights in India. The GI in question is the Tirupati laddu, a confection manufactured by a temple in the state of Andhra Pradesh that was awarded GI status in 2009. While the court ruling essentially cements a settlement reached between the GI owner and the alleged infringer, the case shines the spotlight on the considerable challenges associated with the protection of GIs.

“Filing and prosecution of a GI is one aspect, you get a legal right, but how do you enforce your right?” asks Subhajit Saha, the head of IP at Andhra Pradesh Technology Development and Promotion Centre, which manages the Tirupati laddu GI for the trust that owns it. This is a pertinent question that may be of interest to many other IP owners with exposure in India, let alone the owners of the 200 or so other GIs that have been registered in the country to date.

It is an opportune moment to be discussing matters relating to intellectual property. For as this issue of India Business Law Journal goes to press, trademark owners and intellectual property lawyers the world over are registering to attend the International Trademark Association’s (INTA’s) annual meeting, which this year will take place in Hong Kong on 10-14 May. India Business Law Journal is proud to be an official media partner of the meeting, which is one of the largest intellectual property conferences in the world. We will have a booth in the exhibition hall and we look forward to meeting many of our readers there (for details of how to attend, please see INTA’s advertisement). We are also pleased to present a series of special IP features – spread over this month’s and next month’s issues – that have been written to coincide with the conference.

One such feature is this month’s Intelligence report, in which we provide a unique perspective on India’s IP profession by benchmarking and comparing a range of IP firms based on quantitative variables such as fees charged for certain services, hourly billing rates, number of trademark and patent applications filed and number of enforcement matters handled. We also provide details of what each firm considers to be its most noteworthy cases or achievements over the past year. We trust that this unique coverage will prove useful and insightful to all INTA delegates with an interest in India, as well as to our regular readers.

Another issue that is sure to be high on the agendas of those with an interest in India is the country’s new Companies Act, particularly its requirements regarding gender equality. The new act mandates that there must be at least one woman director at every listed company by 1 October. Writing in this month’s Vantage point Hiroo Mirchandani, an independent consultant with 30 years’ experience in corporate India, argues that first-time woman directors will bring diversity and a fresh point of view to India Inc. She says research has shown that companies with more women directors produce stronger business performance and that a marriage of experience and freshness is necessary for boards to keep up with the requirements of a changing and volatile world.

Gender equality is not the only area in which the new Companies Act is becoming a catalyst for change. In Giving back we examine the new obligations companies have with regards to corporate social responsibility. While the Ministry of Corporate Affairs has promised there will no return to the “Inspector Raj” regime that plagued companies in the past, concerns have been raised over certain grey areas in the new rules.

In Falling foul? we turn the spotlight on a proposal to widen the ambit of the UK Bribery Act, and investigate its implications for any Indian companies that find themselves accused of corruption. The proposal to extend the “failure to prevent” concept to financial crimes is yet to be presented in parliament, but it has already set alarm bells ringing in several large companies and financial institutions.

Angela Pearson, the head of the international investigations and compliance group at UK-based law firm Ashurst, says that while the proposed change would provide “a powerful tool for prosecutions of complex financial crimes in future,” it would also substantially increase the already considerable compliance burden on companies.

The move may well be a step on the road to success in the fight against corruption. However, it has already left a bitter taste in the mouths of many Indian companies.