Fidus Law Chambers
What led you to establish Fidus Law Chambers and what advice would you offer anyone considering setting up their own firm?
Fidus was set up in 2008 amid the global recession. It was a time when clients were rethinking legal budgets and were willing to consider a leaner, more agile firm that offered business-critical advice at a good value. Hence, I had an opportunity to showcase some new and disruptive approaches to IP protection, strategy and enforcement, which may have otherwise been considered too radical. Fidus is a product of a desire to set up a high-tech, high-value practice with a fairly flat structure, where professionals are valued for their expertise and the management is free of nepotism. We are in a similar place today due to the covid-19 pandemic so it is a good time for confident and innovative young prospective entrepreneurs to take the leap. My one word of caution is that if cost is your only differentiator, you will not last.
As a WIPO panellist, what is the key concern that brand owners have with the domain name system?
Perhaps the most troublesome offshoot of the EU General Data Protection Regulation is the masking of the particulars of domain name registrants, which makes it extremely difficult for brand owners to tackle domain name infringements. They no longer get a shot at simply sending a legal notice to achieve a more cost-effective resolution before initiating litigation. To that end, the advantage of UDRP complaints is that these can be filed and accepted without registrant details. While the UDRP system is predictable and standardised, the IN Domain Name Dispute Resolution Policy (INDRP) system is not so and there have been a number of occasions where panellists under the INDRP system have ruled against a trademark owner in an egregious instance of infringement and bad faith, simply on account of their unfamiliarity with the basic principles of trademark law.
You are renowned for your prowess in the courtroom. What are the key skills for a star litigator to possess and how have you honed these?
I always ensure that I am 100% familiar with the entire matter, so that in court I am never thrown off by a tiny fact, which might turn the direction of the entire litigation. The other thing that I am careful about is ensuring that I am equally well versed in the case law that supports and goes against my client’s position. You can earn immense credibility in court during arguments if you are able to tell a judge what the contrary position is and why you think your case does not fall within it. Human tendency is to always present a position that is 100% favourable for your own client – challenging that means you are confident of where you stand and have the integrity not to do a disservice to the law by advocating an erroneous position just because it helps your client in the short term. And of course, being unfazed no matter how intimidating the judge or the counterparty (and its legal team) may be, being able to talk your way out of any situation and being able to use humour to defuse a tense moment are all qualities that help.
How have client demands changed over the past 10 years?
Even 10 years ago clients took a lot more at face value. The digital revolution at the Indian Trademark Office and the easy availability of Indian case law has helped to demystify a lot of the opacity around the way in which IP law used to be practised in India. Clients no longer rely on a personality or a voice of authority and accept anything that they say without asking questions, but expect balanced, commercially sound, mature and strategic advice – so it is easier to stand out on the basis of quality work without being merely personality-driven. Clients expect agility and responsiveness and wish to receive deliverables that are comprehensible and practical.
Your firm has been involved in a number of high-profile disputes for A-list brands. How do you build long-term client relationships when the stakes are so high?
We really invest in our clients; we spend a lot of time helping to build their understanding and comprehension of the specific areas of law that apply to them so that when we give them certain advice it makes sense to them. In a way we equip clients so as to make ourselves redundant when it comes to a lot of the minutiae. That is a great way to build trust – to tell people: “You shouldn’t be paying us to do this – we will train your assistants to do this themselves so we can spend our time and your money on the bigger issues.” My team and I have a lot of conversations to understand the questions that are paramount in clients’ minds and the business priorities that drive them so that our advice is tailored accordingly. We often alert them to the need for attention in a particular area (perhaps because of the unique position that IP law is in) that they have not even considered in India – so they know we are watching their back. Over time we make their problems our own so that they can eventually delegate their sleepless nights to us!
You regularly conduct police, judicial and customs training. How can brand owners work with these groups to better utilise such methods of enforcement?
I think that there is an opportunity for brand owners to work collaboratively with the authorities. The recurrent complaint that we hear from the Police is that while brand owners are happy to conduct criminal actions, once a case is registered, it is hard to get witness statements, among other things. This naturally affects the appetite of the Police to prioritise IP actions. Brand owners in turn complain that criminal proceedings in India drag on for years, which is a disincentive to adopting that route. The need for wet signatures, notarisation and voluminous evidence on matters such as whether the company exists, whether the person signing has the authority to sign and so on make the judicial system unwieldy and impractical. The rate of customs seizures is erratic and far too many consignments of counterfeits go through. None of these systemic problems will be resolved through training alone if there is no collaborative effort to address them and a commitment to pursue such dialogues either as industry bodies or associations.
You have been the co-chair of an INTA-CIPAM (Government of India) working group tasked with developing materials on the subject of IP rights for children. Why is this important and how can IP professionals support these efforts?
This is an issue that is very close to my heart as I believe that intellectual property is not just a field of law that we practise but a subject that has immense ability to do good and prevent harm. Educating children on the importance of protecting and enforcing intellectual property can go a long way towards building an innovative society. IP professionals can and should support these efforts because the kind of practical insights that they bring help to make these conversations a lot more interesting for children who may be taught the concepts in the classroom but get to experience first-hand what they mean in the real world. Separately, I have also seen how inspiring it can be when successful lawyers come into a classroom and tell children about the exciting and cutting-edge work that they do while giving them a goal to aspire towards. It can be very empowering.
You are passionate about a wide range of pro bono issues. What can you tell us about some of these and the work that you do?
It seems that 2020 is shaping up to be a watershed year for all of us and Fidus Law Chambers is no exception. Over the years we have worked on a number of issues individually and collectively. Apart from the pro bono advice that we have given a lot of small businesses and social enterprises (especially those that work in women’s and children’s issues), we have also contributed towards paying the law school tuition fees for an underprivileged student we came in touch with last year. In February 2020 we got involved in relief work during the riots in Delhi. Covid-19 came soon after, and with it came the massive problem of hunger and unemployment for India’s significant migrant worker population. We started providing relief kits of food and essentials on a modest scale and as the need grew, so did the scale of our operations. As of 30 May our relief supplies had reached about 20,000 people in and around Delhi alone. Working together as a team on this helped many of us to battle isolation and uncertainty during the lockdown period with a collective sense of purpose. Our learning from this is that we need to institutionalise our pro bono work so that we can do a lot more in a structured manner. With that in mind, our firm’s charitable arm, ProFidus, was formally established in June 2020.
What are some of the initiatives that your firm has undertaken that sets you apart?
Diversity and inclusion are the cornerstones of the policies at our firm. Although the Indian law against sexual harassment in the workplace is aimed at protecting women, our firm’s internal policy is gender neutral. We are committed to issues of mental health and use the services of a coach who and is available for consultation by individual members of the team under a strict obligation of confidentiality, at the firm’s expense. We attend a yearly retreat with an artiste, who uses tools from the performing arts to help us break down barriers and connect as a team. We recently put in place a buddy system, where each member of the team looks out for the wellbeing of their designated buddy in the firm. We place a premium on the emotional intelligence and the happiness quotient of our team. Our weekly yoga classes and newly established gym are all geared towards helping colleagues release stress and work in a relaxed and happy environment. We observed Pride Day on 29 June 2020 to reinforce the message that our workplace is a safe place for people of all sexual orientations. All members of our firm, no matter whether they are part time, full time or temporary, are treated fairly and with respect.
We have also worked very hard to streamline our systems and processes so that we can achieve optimal results for our clients with the best use of technology. We are one of the few IP firms in India to be both ISO 9001:2015 and ISO/IEC 27001:2013 certified, which is a testament to our service quality as well as our data security.
If you could make one change to the Indian IP system, what would it be and why?
I would not just want to make one change, but at least three!
First, make the process of enacting legislation and policy making more inclusive – our current system is not sufficiently transparent and a number of stakeholder voices either are not heard or are drowned out at the time that laws and policies are debated and passed.
Second, create platforms for collaborative problem solving either through better dialogue or through better use of technological solutions (eg, through online dispute resolution).
Finally, make available:
- data on the yearly customs seizures under the IP rules (split according to industry);
- a centralised database where all IP office orders are uploaded;
- data with respect to court-wise case pendency; and
- data with respect to the pendency of prosecution, opposition and cancellation files at each IP office, as well as refusals and acceptances split by office.
Shwetasree Majumder is ranked among the top 100 lawyers in India. She has served on the INTA board of directors and is a WIPO UDRP panellist. Ms Majumder has been appointed amicus curiae by the Delhi High Court for determining the threshold of intermediary liability in copyright law and was a part of the Delhi High Court committee that drafted amendments to streamline processes in IP litigation, which were passed in November 2018.