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Exploring TRIPS Covid-19 waiver: Is the remedy effective?
By Sutapa Jana and Sudarshan Shekhawat
Considering the situation of shortage of drugs and other resources to combat Covid-19, India and South Africa have jointly requested for a TRIPS waiver. The article in this issue of IPR Amicus examines whether the Intellectual Property Rights on vaccines, drugs and other necessities are the culprits against public availability and affordability. Discussing, exactly what a TRIPS waiver is and what it seeks to achieve, the article also elaborates on contradictory views relating to the waiver. It notes that while opponents of the waiver argue that there are ample TRIPS flexibilities which are sufficient to combat the IP barriers during this pandemic, according to the proponents, a global approach is required. The authors however note that none of the arguments in favour of the waiver counter that the TRIPS protection is the very incentive which led to such rapid breakthroughs. They argue that there is no need for a blanket waiver as firstly, IP is not the sole barrier (access to raw material and know-how, etc. are also important) and secondly, almost all the vaccine companies have entered into voluntary licensing arrangements, which also ensures quality. According to them, any forceful surrendering of the rights would be extremely disproportionate, may be counter-productive and can erode substantial value from these innovator companies...
Ratio Decidendi
Design – Compliance with standards when can lead to ‘prior publication’ – Delhi High Court
‘BharatPe’ not confusingly or deseptively similar to ‘PhonePe’ – Suffix ‘Pe’ cannot be separated and prima facie has no secondary meaning – Delhi High Court
News Nuggets
Protection of intellectual property rights – India remains in USA’s Priority Watch List
Use of trade mark in a published article when not violates Section 103
Well-known mark of plaintiff – Defendant when cannot be restrained
Copyrights in software coding – Copying of API code to reimplement user interface, a ‘fair use’
‘Covishield’ – No prima facie case of passing off by Serum Institute
‘Revital’ a well-known mark – Delhi HC grants ex-parte injunction against ‘Nuvital’ for copyright in trade dress
LLP registration – Name already in use in different class, permissible
