The pandemic has inevitably caused a major hiccup in the business sentiment worldwide. As far India is concerned, legal services, although being a major necessity has also seen a downside. However, there have been instances and benchmarks set out by veterans in the way they have traversed through these tough times. Lex Witness gets into a candid conversation with Sudeep Chatterjee, Partner, Singh & Singh Law Firm LLP to know his views on this. He is currently the President of the Asian Patent Attorneys Association (Indian Group) and is also a member of the Association’s Copyright Committee besides being a Council Member of APAA.
These are unprecedented times and therefore, every situation or challenge is new and uninitiated. However, the main challenges to overcome this situation would broadly be as follows:
I believe India in general would take some time to equip itself to work remotely and virtually. This will take some more time because we need to change our entire lifestyle.
Most kinds of litigation have taken a backseat now due to the unfortunate situation in the country. However, per the analysis and prediction of most jurists, contractual disputes will be on the rise after things attain normalcy again. Albeit enforcement of contracts during the pandemic would is turning out to be a major issue. Furthermore, it is quite likely that arbitration and mediation would be the preferred choice of clients to resolve contractual disputes inasmuch as the same would possibly save time and money. Moreover, with the current slump in litigation and stalling of proceedings, arbitration and mediation are likely to yield expedited results. Most of the Companies are looking at cutting costs. Legal Department being a COST CENTRE for any organization is looking at cutting legal expenses. They themselves are trying to negotiate a lot of contracts themselves instead of giving the same to external counsels.
Corporates would naturally look to stabilize themselves in the first place and probably litigation will assume less importance. While they would certainly have to continue with the current litigation which is already in place but for the cooling period, they might explore alternatives to litigation such as arbitration, mediation, out of court settlements etc. They would have to lay emphasis on factors such as disclosures, regulatory compliances. It would also be imperative for corporate houses to take into consideration the ramifications of COVID 19 in the legal field. This period of stillness is being predicted to give rise to a lot of contractual disputes, performance and payment defaults, cyber security issues etc. Thus, it would be apt for corporates to anticipate and analyze such issues and accordingly strategize the way forward so that they are not caught off guard.
Given the current situation, it is imperative for a counsel to always maintain regular communication with his or her clients and understand their requirements from time to time. Further, it is also advisable for lawyers to acquaint themselves with the regulatory and mandatory compliances, if any, pertaining to their fields of practice so that they can ably advice their clients on the same and be equipped themselves to carry out the necessary compliances. Thus, clients should be aware of the latest regulatory and mandatory compliances in their respective fields of business. Also, it is important for an external counsel to explain to a client that not all contractual performances would be stalled or postponed due to COVID19. It is not necessary that the force majeure clause could be invoked in each and every case. Thus, it is necessary for clients to analyze their contracts thoroughly and get them vetted so that they neither default a performance nor suffer one.
This is so that the clients do not feel that litigation proceedings have been stalled indefinitely and are made aware of other alternate methods of legal proceedings as the same could prove to be cost effective. Clients should also be advised to strengthen their cyber security systems.
Moreover, external counsel should certainly recommend their clients which are big brands or corporate, to keep a close watch on trademark filings and monitor the market. This is necessary because this period has given rise to many counterfeiters and infringers who are trying to cash in on the goodwill and reputation of established brands.
Intellectual property as a domain, just like most domains, has taken a hit during this pandemic. This time of exigency has resulted in many corporates and business owners to conduct IP audits to assess the impact and potential value of selling or licensing out their IP assets or even acquiring new IP. Many corporates are also assessing their patents so that they can either sell them or reduce their maintenance costs.
However, with most businesses going digital now and with the obvious expansion of e-commerce activities, intellectual property and its protection will become non-negotiable. This period has already resulted in resurgence of counterfeiting activities. This implies that several counterfeiters would be producing counterfeit products with identical or deceptively similar trademarks or trade dress as also cheap counterfeit drugs. Also, most content is being released on OTT platforms now. This is already giving way to many piracy and copyright infringement issues.
Thus, trademark, patent and copyright filings as also their litigation would be on the rise. Domain name disputes would increase. Cyber security issues would again make protection and compliances of intellectual property necessary. Also, this period will lead to the formation and rise of many startups and small businesses which would again need IP awareness and consultancy.
Thus, the key derivatives of this phase could be that is extremely important to regularly monitor the market, conduct regular trademark search, perform due diligence, be informed of the relevant online activities, have a robust cyber security system, have timely IP audits so that one is aware of its IP assets as also the ones assigned, licensed and sold so that any unauthorized use of the same can be quickly ascertained.
So, even though the domain of IP may be affected slightly adversely now, protection, compliances and monitoring of the same is going to become indispensable in the times to come.
This is a really difficult time for all professions and businesses, financially. However, keeping in view, the current circumstances, we have been able to manage the financials decently and also managed to retain our personnel.
Lawyers should thoroughly inform their clients about the procedure of e-filings and virtual hearings and the technicalities and problems involved therein. External counsel should also brief the clients about methods alternate to litigation for resolving disputes such as arbitration, pre litigation mediation etc.
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