Right to Repair: Ep.1
Updated: Jul 14
The #RighttoRepair is a neoteric legal concept which proposes to confer a right upon the consumers to get their damaged or malfunctioning products repaired from the manufacturers (including their authorized dealers), or from any independent repair servicing shop coupled with the ability to self-repair the goods, by using the information available to make the repairs.
The significance of the ‘Right to Repair’ and the fattening need to recognize it expressly in the domestic laws of every nation is picking up pace recently, all around the world. It is believed that this right owes its origin from the US, where in the early 2000s, it started to gain momentum and support from consumers, independent repair shops and aftermarket associations (for the advancement of competition and consumerism). Especially, when the larger automobile companies tried to refrain their consumers from tinkering with the machines or from making repairs on their own or by asking the independent repair shops to carry out the same, primarily on the basis of contractual laws.
This right made its debut as a law in 2012, when the State of Massachusetts enacted the ‘Motor Vehicle Owners’ Right to Repair Act’ Right to Repair Laws: Everything You Need to Know in 2019, (signed into law in 2013) and became the first state in the US to do that. Such law made it mandatory on the part of automobile companies to make the spare parts and necessary information available for doing repairs and also allowed the consumers to choose their repairing shops. As of now, around 20 US states are currently considering to adopt similar legislation. Recently, in Oct 2019, the EU also adopted a package of measures (in the form of ten implementing regulations) under the framework of Eco-Design Directive 2009 32009L0125 - EN - EUR-Lex, which is, more or less, on the same lines as the aforesaid Act is.
However, the delivery of the repair parts may be in conflict with different #IPrights of the owner as nowadays, more and more products (from watches to cars) come with specific software embedded in it, which could be subjected to #copyrights or #patents. The products in itself or their parts might be also protected under the #Design or #TradeMarklaw. The discrete or specific information to install or repair such devices could also be claimed as a #TradeSecret and sought to be protected by the manufacturers.
Further, the manufacturers also play a clever move while selling devices; they actually sell the device alone but licence the software or the technology installed in it. Accordingly, the devices may belong to the #consumers and they can do anything with the device as they own it, and even the IP rights get exhausted. And with this blooming ‘Right to Repair’, they may also self-repair the device or ask third parties to do the same, apart from the manufacturers. But the consumers/repairers cannot do much with the software/s, as owners have copyrights attached to it and these copyrights do not get exhausted as the software has been ‘licensed’ and not ‘sold’. Additionally, whenever the software is licensed, different contractual restrictions (such as the prohibition on reverse-engineering, contingent warranty-restrictions, or transfer-restrictions) are also imposed upon purchasers/licensors through End Users License Agreement (EULAs). The third-party manufacturers can also be refrained by the owners, if they make, sell, or construct similar design or Trade Mark protected products.
Now, if these electronic products encounter any problem, regardless of the fact that whether a consumer/repairer has specialised knowledge in dealing with such problem or whether third party manufacturers have the capacity to forge the spare-parts of such products, any kind of tinkering with the copyrighted software/s or patented technology or asking for the reproduction of Trade Mark or design protected products may also invite an action for infringement of IP rights. Hence, owners could easily use IP rights to debilitate or obscure the ‘Right to Repair’ of consumers.
In #INDIA, understandably also, there is no legislation or any express provision which discusses the ‘Right to Repair’ but the judgment of #CompetitionCommissionofIndia (CCI) in the case of Shri Shamsher Kataria vs Honda Siel Cars India Ltd. & Ors on 25 August, 2014 is treated as a watershed for the concept of ‘Right to Repair’, wherein 14 automobiles manufacturing companies were held liable for engaging in anti-competitive practices and abusing their dominant positions, by only selling the spare parts to their authorized dealers and not to independent markets. It was also held that IP rights cannot be taken as a shield in allegations of abuse of dominant position by Indian competition Law.
Nonetheless, the intent and the purpose of this post is limited only to conduct a detailed assessment to ascertain as to whether exercising of the ‘Right to Repair’ amounts to infringement of a trade mark in accordance with Indian Trade Mark law, or whether this right is impliedly recognized or hidden in the Indian Trade Mark Law as a defence or an exception to infringement of IP rights.
For the purpose of a better understanding of the assessment and for lucid contrasting of the ‘Right to Repair’ with Indian Trade Mark Law, it would be sensible to disintegrate this right into four subsets (Intellectual Property Law and the Right to Repair - Leah Chan Grinvald and Ofer Tur-Sinai), and then analyse each subset individually. The appellations accorded to these subsets are, more or less, self-explanatory and these are the following:
Self-Repair by Consumers/Purchasers.
Independent Manufacturer or Suppliers.
Disclosure & Supply of Repair Information.
In the next part, it will be analysed as to how the afore-stated subsets of the ‘Right to Repair’ interacts with or muddles through Indian Trade Mark law. Nevertheless, it should be remembered and considered that the purpose of this paper is not to put ‘Right to Repair’ on a higher pedestal than the Trade Mark rights or vice-versa.
Till then, signing off -