iVoice Ventures has faith in India’s intellectual property regime despite its lingering trademark battle against Apple, writes Venky Vaiyapuri
Around 2006, India radically amended its telecom rules on the import of mobile phones thus throwing open the sector to competition with established players such as Nokia, Samsung, LG, Motorola, Sony-Ericsson, and BlackBerry. iVoice embarked on the quest to create a cost-effective mobile phone with unparalleled premium features for the ordinary person. Following much deliberation on what to call our invention, we decided on “IndiaPhone”. Our intellectual property (IP) attorney rejected this choice as too naively simplistic, citing a few sections from the Trade Marks Act, 1999. Mulling over several ideas, we finally had our eureka moment and settled on the name “iFon” – “i” for India, and “Fon” for phone.
Exactly two years down the road, this mark would ignite fires, destroying not only our operational plans, but investor commitment, suppliers and cash flows.
In 2008, while we were in the midst of production following the success of our first mobile phone launch, we received the gazette publication for trademark grant purposes concerning our iFon mark. A defining moment came when an innocuous looking letter from the Trade Marks Registry (TMR) advised us that Apple was opposing our trademark because of phonetic similarity to its own “iPhone” mark.
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Murphy’s Law had a glamorous roadshow as investors reneged on cash promises to support the manufacture of tens of thousands of iFons. As Shakespeare wrote in Romeo & Juliet, “a rose by any other name would smell as sweet”. In this instance, we hated both Murphy and Shakespeare!
Seething emotions and financial distress aside, we focused on the TMR’s constituent framework within the ambit of the act and why it had allowed us to publish our mark if Apple’s claim was even remotely true. Had the examiners overlooked our choice of logo and erred in their decision, leading to the unravelling of our entire business plan?
In our search, we found no flaw in the examination process nor a single reference to Apple and its iPhone. Was there a holistic connection under international trademark class 9 between a “computer hardware & software” product (under which Apple registered its iPhone) and “all types of cellular & mobile phones” (under which iFon was registered)? Reassured by our legal position, we decided to take Apple head-on to prove Shakespeare wrong on all counts and direct Murphy to his right location!
India is a signatory to both the Paris Convention for the Protection of Industrial Property and the Madrid Protocol, which, in theory, should reassure domestic and international companies in India about IP protection mechanisms. India’s government recently committed US$50 million to modernize and strengthen its IP offices to handle the increase in IP filings. This move aims to address growing international commitments relating to the Madrid Protocol and operational issues associated with the Patent Office becoming an International Search Authority and International Preliminary Examining Authority. The recruitment of more examiners along with the streamlining of filing processes is intended to speed up examinations, promote innovation and protect IP owners from possible infringement actions.
We have seen progress. Companies can file trademark, patent and copyright applications online, which is an important development in fuelling efficiency. E-filing payment gateways have broadened payment options dramatically with a number of internet banking options, compared with only two banks earlier.
In addition, the announcement in November 2014 of cooperation with the US through a high-level working group on IP offered hope for efficient cross-border information sharing and best practices. Such cooperation has the potential to encourage dialogue and mutual trade benefits. The establishment of an IP rights think-tank to draft a national IP rights policy and to advise the Department of Industrial Policy and Promotion on IP issues offers further reassurance.
Irrespective of such pointed progress, companies may still experience inordinate delays during filing or enforcement exercises as iVoice is learning from its iFon saga. An opposition action is yet to see its day in a court of law five years after the legal deposition phase. If the matter had been disposed of in a timely manner, iVoice could have charted a new direction to fulfil its business goals. Instead, it is left languishing in limbo. Hopefully, the government will rectify this situation by setting up fast-track remedial forums and specialized courts to deliver time-bound IP decisions, thereby assisting start-up companies such as iVoice, which may face similar predicaments against a deep pocketed opponent.
We have absolute and unwavering faith in the Indian judiciary and look forward to a fair decision to conclude this case. As Voltaire famously said: “Truth is a fruit, which should not be plucked until it is ripe.” We await the ripening of iFon.
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Venkateshwaran (Venky) Vaiyapuri is an entrepreneur and operations director of iVoice Ventures, India. He currently holds 17 US patents as first named inventor and has wide experience as an engineering executive in the outsourced hardware product development and manufacturing domain in Asia-Pacific. He can be reached at venky@ivoicevc.com. The author wishes to thank S Suresh Kumar, the managing partner of UniMarks Legal Solutions in Chennai, for his input on recent government and IP policy matters.
