In this engaging podcast series hosted by Black Silk, KPS Kohli (Partner at Seraphic Advisors) and Debopama Roy (Global General Counsel Airmeet) delve into the implications of the newly enacted Digital Personal Data Protection Act, 2023 (DPDP). Here are the key highlights from their discussion:

1. Understanding the DPDP Act:

• The DPDP Act is a landmark legislation aimed at safeguarding digital personal data in India.
• KPS Kohli and Mayank Grover explore its seminal provisions, emphasizing the need for compliance by businesses and individuals.

2. Role of the ‘Consent Manager’:

• The role of a ‘Consent Manager’ under the DPDP Act is critical. It involves obtaining and managing user consent for data processing.
• Debopama Roy sheds light on the responsibilities and challenges faced by Consent Managers in ensuring lawful data handling.

3. Balancing Privacy and Innovation:

• The discussion underscores the delicate balance between privacy rights and fostering innovation.
• Businesses must adapt to the new legal landscape while leveraging data for growth.

The Division Bench of the Delhi High Court has held that any act of surveillance is not within the purview of telecom service providers (Vodafone in this case); instead, they are conducted under the directions of the concerned government, when an authorized officer is satisfied that it is expedient to do so in the “interest of sovereignty and integrity of India, the security of the State, friendly relations with the foreign states or public order, or for preventing incitement to the commission of an offence”, and is exempt under Right to Information Act, 2005.

The decision was passed in Telecom Regulatory Authority of India (TRAI) v. Kabir Shankar Bose & Ors. on December 22, 2023, wherein the Division Bench had set aside the Ld. Single Judge judgment in line with Central Information Commission’s order that TRAI has power to access information from a private body under any other law for the time being in force.

The findings of the Court were:

1. Section 11 of the TRAI Act, 1997 defines functions that are to be discharged by TRAI and one of the functions assigned to the Authority under sub-section 1 (b)(i) is to ensure compliance with terms and conditions of the licence by telecom providers and the same cannot be read so broadly to include each and every action taken by the telecom service providers.
2. Section 11(3) of the TRAI Act specifically states that TRAI while discharging its functions outlined in sub-sections (1) and (2), should not act against the interest of the sovereignty and integrity of India, the security of the State, friendly relations with the foreign states, public order, decency or morality.
3. To hold that asking for information in relation to interception or tracking or tapping of a phone would be within the power of TRAI under Section 12 of the TRAI Act, would not be in conformity with the functions specified in Section 11 of the TRAI Act.
4. Directing TRAI to call for information and interfering with the functions of telecom service providers would not be in consonance with the objectives enumerated under the TRAI Act.
5. Information in relation to interception, tapping or tracking of a phone is exempt under Section 8(a) of the Right to Information Act, 2005, as such, disclosure of information would impede the process of investigation and may be construed to prejudicially affect the security, integrity and strategic interests of the country.

The Division Bench of the Delhi High Court has held that merely having a global reputation or goodwill is not sufficient to claim trans-border reputation for a trademark. In order to succeed, it is imperative for the claimant to prove and establish existence of goodwill and reputation in the concerned territory.

The decision was passed in Bolt Technology OU v. Ujoy Technology Private Limited & Anr., on November 30, 2023, in line with the 2017 judgment rendered by the Supreme Court in Toyota Jidosha Kabushiki Kaisha v. Prius Auto Industries Ltd. on the subject of transborder reputation.

The Single Judge had directed that having installed a limited number of electric vehicles and not being engaged in providing electric vehicle charging services globally, Bolt Technology cannot be attributed a transborder reputation in offering EV charging services that extend to India.

The Court held:

1. It is essential to establish goodwill and reputation of a trademark in India; merely having trans-border reputation is not sufficient. Thus, territoriality principle applies and not the universality doctrine.
2. For a claimant to be entitled to protection of trademark, the mark must have a substantial presence among consumers. Establishing reputation itself relies on widespread recognition within a significant and notable segment of an audience.
3. A claimant lacking presence or a customer base in India, or failing to establish such presence through sufficient advertisement or promotional activity, or one who fails to establish a global reputation widely recognized by the Indian consuming public, would be disentitled to claim protection.
4. The goodwill for the mark necessarily implies that the claimant has made significant and substantial revenue. Reputation would stand satisfied if the Court is to find substantial presence of the mark in the market.
5. The technical progress and precedents that are set may have enabled the Court to eliminate the requirement of a real market. However, in determining the robustness of a trademark’s global reputation, it is crucial to establish and assess the metric of substantial goodwill or reputation through sufficient evidence within the Indian market.