Think Local and Global: Interview with 2021 Annual Meeting Regional Updates Track Leader Shwetasree Majumder

Shwetasree Majumder, Fidus Law Chambers, India

As the intellectual property (IP) landscape continues to change locally, regionally, and globally, brand professionals increasingly need to keep up to date on developments, not only on their home turf, but on all these levels. Understanding the differences in marketplaces and the state of the practice of law in each is critical for the continued success of brand practitioners. This is the premise behind the educational sessions on the Regional Updates track at the 2021 Annual Meeting Virtual+.

Marking a new format, the virtual component of the Meeting includes one track on each day of the event, from November 15 to 19. The tracks are, in day order: Building a Better Society Through Brands; The Business of Brands; Enforcement and Anticounterfeiting; Innovation and the Future of IP; and Regional Updates.

Shwetasree Majumder is a member of the 2021 Annual Meeting Project Team and the track leader of the Regional Updates track. She is managing partner at Fidus Law Chambers in India, an IP boutique law firm that she founded in 2008. Her practice spans litigation, IP policy and strategy, technology, advertising, and trade secret issues.

In addition to volunteer positions that she has held nationally and globally, including co-chair of a working group under the aegis of the Government of India to educate children about IP rights, Ms. Majumder is a longtime INTA volunteer. She served on the Association’s Board of Directors from 2013 to 2015, marking the first time a woman from India was elected to that role; was chair in 2018 of the Presidential Task Force on Small and Medium-Sized Enterprises; and is currently a member of the Anticounterfeiting Committee.

In an interview with the INTA Bulletin, Ms. Majumder discusses how the Regional Updates track will be of interest to “anyone who wishes to be a well-rounded brand professional with a global perspective,” and offers specific insight into developments locally in India.

When an Annual Meeting registrant hears “regional updates,” their first reaction might be to only attend a session that focuses on their region. Why is it important for brand professionals to take a broader approach and learn what’s happening in other parts of the world?
The Regional Updates programming track does not treat each region in a silo and instead adopts a comparative approach to understand laws, developments, and even leadership challenges from similarly placed geographies. In addition to the case law updates, we have a session that audits all new laws impacting the IP ecosystem and another session that focuses on the leadership journeys of women heads of law firms from geographies where their ascent is uncommon. The content is designed so that it will be of interest to anyone who wishes to be a well-rounded brand professional with a global perspective and a leader in one’s chosen space.

What trends or developments in IP law around the world are having the greatest impact on the IP field right now?
There are many intersecting developments that the IP world is watching closely—from a greater impetus on data protection and privacy; to legislation regarding the virgin territories of e-sports, online gaming, and fantasy sports; to the challenges created by blockchain, protecting IP in non-fungible tokens (NFTs) and other forms of digital art; and increased dependency on artificial intelligence (AI) and automation. A push toward social media marketing is creating new challenges in anticounterfeiting efforts and forcing a redrawing of liability regimes with influencers coming into the fray. On the other hand, the clamor for harmonization of IP laws is stronger than ever before, particularly in the aftermath of Brexit.

As you can see, many of these trends and developments are borderless and affect brands globally. In a similar vein, these same issues have regional nuances that brand professionals should be aware of.

You are participating in a panel titled “Carpe Diem—New Laws That Impact the IP Ecosystem.” In looking at India, what are some of the recent IP developments that take the IP community and the country in new directions?
This is an exciting time to be an IP lawyer in India. We have a whole host of new laws that are both procedural and substantive. In this specific session, I will focus on technology laws, in particular those concerning data protection and intermediary liability.

India’s Supreme Court recently declared the right to privacy as a fundamental right and tasked the government with developing a privacy law that protects the sensitive personal information of citizens and guarantees them their privacy. In a country where telemarketers operate in a highly unregulated space, this is a welcome move for individuals. However, if the law is not well calibrated, it could pose a number of concerns for ethical businesses, which, despite having their own safeguards for data security, may have to adopt practices that are discordant with their policies.

The session on “The Journey of Women Leaders in Private Practice” will explore personal and professional journeys from regions where women leaders are “the exception rather than the norm.” What country-specific factors impacted your own journey?
While there are a number of women in senior leadership roles in law firms in India today, the overall statistics of women in law still don’t look good. I was lucky to have a great mentor in the early days of my career who paved the way for my leadership journey. Structured mentoring is still uncommon in India. Likewise, also uncommon is a prioritization of mental health and a work-life balance—issues that I’ve attempted to address in our firm, Fidus Law Chambers.

In India, the focus is more on “hitting the ground running” and less on training or reskilling. Being overworked, rather than being efficient, is seen as a badge of honor. Breaking out of a “tried and tested” and formulaic approach to IP law has helped my personal journey. I hope my own attempts to mentor the next generation of leaders will help pass on some of these learnings.

India’s e-commerce and tech start-up boom has exacerbated the counterfeiting problem in India and could potentially dampen the incentive to innovate. What creative strategies or government-private collaborations are in place in India to combat counterfeiting?
Anticounterfeiting efforts can never be resolved by the black letter of the law alone. INTA’s Anticounterfeiting Committee is undertaking a policy initiative to bring all stakeholders in the ecosystem together to identify and implement innovative collaborative solutions to tackle the issue. Although India’s earlier Information Technology Act and Rules provided for takedowns based on a court order alone, they now recognize voluntary takedowns based on complaints, thus facilitating a direct engagement between brand owners and platforms, without the need for litigation.

The High Court of Delhi recently created a specialized IP Division within the court to address matters involving IP rights. Although it has only been a few months since this groundbreaking development, what changes have you noted in terms of efficiency and consistency?
The IP Division (IPD) of the Delhi High Court (DHC) is certainly expected to be an improvement over the Intellectual Property Appellate Board (IPAB). Although meant to ease the backlog at the high courts, the IPAB has always been infamous for its struggles—with a lack of resources, gaps in appointments, space constraints, irregular circuit bench hearings, delays in passing orders due to lack of secretarial staff, and nomadic physical premises. These issues significantly impacted IPAB’s efficiency. The DHC, on the other hand, has been lauded to other high courts for its infrastructural superiority, the technological proficiency of its judges, its progressive rules and practice directions, and the efficiency of its court staff.

The Commercial Division in the DHC already had a number of judges who were hearing IP matters under the overarching umbrella of commercial matters. Under the IPD regime as well, all the judges currently deputed to hear commercial matters are also appointed as judges who will hear IP matters to ensure that the pressure is not on one or two courts. To that extent, despite the new nomenclature, the IPD is not “new.”

Since the enactment of the Commercial Courts Act, 2015, which constituted the specialized division in the high courts to decide commercial disputes (which include IP suits), India’s IP jurisprudence has flourished. The Act introduced progressive procedural provisions, shortened the timelines in straightforward cases by passing summary judgements, kept a tight rein on trials through case management hearings, laid down shorter timelines for completing pleadings, and has played a significant role in the expedited hearing and decision in a large number of matters.

If the judges of the IPD were freed up to only hear IP cases, then it would ensure reduced timelines between the decisions in an interim application and in the final suit (since the latter is still taking a lot of time). A new set of draft rules that will iron out the procedure have been circulated for stakeholder comments.

In short, the IPD is expected to be at least as efficient as the commercial division which currently hears IP disputes (and more, if they are able to exclusively hear IP disputes). Further, it will ensure consistency in decisions. For example, in cases where a revocation petition before the IPAB and an infringement suit before the high court were being heard in parallel, there have been instances of inconsistent findings.

With the Regional Updates track concluding the 2021 Annual Meeting on Friday, what do you hope registrants will walk away with from the Meeting as a whole?
I am hoping registrants take advantage of both the educational content and myriad networking opportunities on the virtual platform. I am very excited about our combined push, as track leads, to not only ensure that our programming stays at the cutting edge of innovation, but that we also equip attendees with the tools to better advise their internal/external clients on the latest issues in IP law and the global approach to resolving those issues. I have personally learnt more about comparative IP law from INTA than I’ve learnt from reading alone. A dynamic and interactive environment, where speakers share tips on navigating either an unregulated minefield or a heavily regulated one, is an excellent way to layer one’s theoretical knowledge with practical skills, which ultimately helps us all be better lawyers.

What are you most looking forward to at the 2021 Annual Meeting Virtual+?
On the networking side, I am eagerly looking forward to meeting and sharing a drink and a laugh with my friends from across the world who I’ve missed and who I cannot wait to get together with in person.

On the academic side, apart from my own session, I am keenly looking forward to Brenda Kahari’s session titled “Telling Our Truth: The Journey of Women Leaders in Private Practice.” INTA is a great breeding ground for superlative women leaders, and I hope the learnings foster the next generation of changemakers.

Registration for the 2021 Annual Meeting Virtual+ is open until October 29. Register today for access to limited-attendance sessions on the virtual platform.

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