Rahul Chaudhry

What led you to pursue a career in intellectual property – and what advice do you have for anyone considering a similar path?

In today’s age of technological revolution, the scope of IP rights has reached unimaginable heights. Understanding intellectual property as the most important assets in the world today, realising that this is where the future lies, fascination with brands and utilising my legal knowledge to protect people’s creations is what led me to pursue a career in intellectual property. Considering the growth and freshness of the field, alongside the plethora of options in intellectual property to choose to specialise in, this is a great field to pursue a career.

A lot of big brands are now starting to engage in the metaverse. What would you say are the three most critical steps that rights holders should be taking in this developing space?

• The rights holder should conduct an IP audit of the brands before engaging in the metaverse.
• To ensure effective protection, the rights holder must devise an appropriate brand strategy.
• The rights holder should conduct a thorough analysis of the virtual landscape in which they hope to market and promote goods and services, in order to determine whether they want to do business in the metaverse.

What does inspiring leadership look like to you?

Inspirational leaders are value driven, and lead with a deep sense of purpose and responsibility to create positive change. They have a crystal clear vision of the future and are passionate. Inspiring leaders communicate impeccably. Instead of leading with emotions or fear-based tactics to drive results, they focus on cultivating an environment that makes their employees feel comfortable approaching and talking to them. They encourage unity among peers for better outcomes and to achieve goals.

If you could change one thing about the trademark regime in India, what would it be and do you think that it is likely to happen?

Under the Trademarks Rules (2017), there are no provisions with respect to the extension of time in which to file evidence in support of the opposition. The lack of such provisions makes it difficult for our overseas clients to collate evidence in support of opposition within the stipulated timeline. We definitely think raising such concerns at the registrar’s office would bring change to the practice of the registry in the near future.

What are the most important nuances for international rights holders to be aware of before pursuing litigation in India?

• India is a common law country; thus, even if an international rights holder does not own a registration, they may still be able to bring an action;
• choose your forum wisely, that is, IP-savvy courts and benches; and
• choose your defendant wisely. India is a country that has a problem of plenty. There are many infringers, so it is important to prioritise the matters that need to be litigated.

Claims by brands that they are environmentally sustainable are coming under increased scrutiny. What steps can they – and their advisors – take to stay clear of accusations of greenwashing?

Being eco-friendly and going green are current trends that feature extensively nowadays at various companies, because of increasingly extreme climate change, global warming and other environmental hazards. Companies are expected to adopt the most sustainable approach possible.

However, lately, all of us are aware of several instances wherein organisations have been accused of greenwashing. This concept came into being due to various advertisement practices used by companies to show that they have acted in an environmentally sound manner, but in reality, they have done the opposite. In order to avoid such accusations and pass with flying colours, we recommend the following steps:

• Transparency: if a company is claiming to follow certain standards or practices then they should also provide transparency to consumers with regard to such claims.
• Data credibility: in order to support claims, data should be provided that compares earlier and present outcomes and which clarifies the actual eco-friendly standards of the company.
• Advertising: an organisation should advertise the actual outcome, instead of claiming false eco-friendly measures that could backfire at a later date.
• Scientific credibility: before adopting a new sustainable approach, the company should take scientific advice and ascertain the credibility of the proposed actions prior to implementing them. This would benefit the company in two ways – firstly, the chances of successful implementation of sustainability would increase and secondly, in the event of failure, the company can make their stand and prove their point on the basis of earlier reports.

How have client expectations changed over the course of your career – and how has your practice evolved to meet these?

Over the years, we have come across various instances wherein our established clients with vast IP rights and a strong IP structure look to minimise or balance their expenditure. They also tend to solve conflicts amicably wherever possible. However, in cases of extreme infringement, clients have been very proactive in taking necessary measures.

We have also noticed that our India-based clients are becoming more aware of the importance of IP rights, and accordingly are proceeding to file IP applications dynamically. Further, our clients are also emphasising cross-border protection of their marks and international filings.

We have been flexible and efficient in adapting to the needs and expectations of our clients and offer to maximise the value of their critical IP assets. Our focus is on communicating with clients in a timelier manner, in order to strengthen attorney-client relationships.

We have strived to understand the business needs and requirements of our clients and respond to their concerns, along with providing them with legal options that are both viable and cost conscious.

We make our clients well aware of the consequences of proposed actions and engage with them positively and confidently on a case-by-case basis. Both business sensitivities and goals are kept in mind when crafting comprehensive IP protection and enforcement strategies.

What are the top three skills for a world-class IP litigator to hone?

• Effective communication;
• in-depth knowledge and an eye for detail; and
• negotiation skills.

How can companies use various different rights (eg, trademarks, designs) to protect their brands in India?

The brand of a company is its most important intangible asset, as it identifies and defines the products and services provided by the business. A strong brand attracts long-term consumer loyalty and maximises both results and profits for the organisation. Therefore, it is important for companies to protect their brands from infringement and counterfeiting. Different IP rights such as trademarks, designs, copyrights and patents, among others, provide strong legal and administrative protection for companies’ brands. In the event of infringement, prompt IP enforcement by way of legal recourse helps companies to secure their rights in the form of sending a cease-and-desist notice to the infringing party and by way of common law/infringement proceedings in a court of law against the infringer. During proceedings, courts also recognise protected IP rights on the basis of a company’s vigilant behaviour in protecting their intellectual property and their active defence against infringers.

Therefore, brand identification and IP management should be done effortlessly by all companies. We have been recommending strategies to broaden the scope of IP rights to our international as well as domestic clients by way of suggesting new trademark, design and copyrights filings and in informing them of new developments in the IP regime in this regard.

The following practices are essential to broaden the scope of protection and prevent dilution of clients’ rights in their respective brands:

• file comprehensive trademark applications for each individual element for maximum protection of their rights, including claiming rights in a colour combination in which the brand is in use;
• file trademark applications in the most relevant classes, claiming descriptions of related goods and/or services;
• file opposition/rectification proceedings against identical and deceptively similar marks;
• take suitable action in a court of law in a timely manner against the infringer;
• use the brand within the timeframe prescribed in law to avoid non-use cancellation action; and
• use the symbols ® and ™ against the brand.

Following the controversial abolition of the Intellectual Property Appellate Board last year, the Delhi High Court announced the creation of an Intellectual Property Division. Almost a year on, how has this affected IP litigation in India?

The impact of the IP Division has been good, because it is focused on helping to protect the interests of rights holders and is also taking steps to look into the administration of the IP Office to improve the registration process of IP rights in India. There is also an emphasis on speedy justice and resolving matters through mutual compromise where possible. The creation of the IPD Division has been applauded in the annual Special 301 report submitted by the United States Trade Representative.