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Weekly Review (2nd June to 8th June, 2014)


reviewWe started this week with Gopika’s post on the dispute between Anchor Health and Proctor and Gamble over the mark ‘ALL ROUND’ that was applied to their respective toothpaste products. She notes that the Single Judge’s decision was based on three primary issues – whether the mark was descriptive, whether it had fallen into disuse and lastly as to whether there was any infringement at all. The court relied on the doctrine of approbate and reprobate to determine the first question and answered the remaining two questions in favour of plaintiffs finding that infringement did in fact take place. In doing so, the court restated the test for infringement and noted that the overall similarity between the two marks must be compared. She followed this up with a post on the Division Bench ruling rendered on appeal in the same matter. In this decision the court ventures into the questions regarding descriptiveness of the mark and whether the primary trademark of the plaintiffs (respondents in this instance) was ‘ANCHOR’. Answering both questions in favour of the plaintiff the court delivers a well-reasoned and sound order. It rules that the mark has only become descriptive because it was used by the plaintiffs and was not descriptive before that and also that the ‘ALLROUND’ mark helped identify the plaintiff and therefore was a trademark under the Act.

The next post we had was the SpicyIP highlight of the week, with Aparajita reporting on the Supreme Court’s order in the Enercon dispute streamlining the patent revocation proceedings. The court ruled that of the three methods available to revoke a patent (pre/post grant opposition, revocation proceedings before the IPAB and counter claim in an infringement suit) the latter two proceedings are not conjunctive and a choice had to be made between the two. Essentially, if a party has filed for revocation before the IPAB, he cannot make a counter claim in a suit for infringement asking for revocation of the patent and likewise if he has filed a counter claim in a suit for infringement asking for revocation of the patent, he may not initiate revocation proceedings before the IPAB. This greatly streamlines the process of revocation of patents and reduces the multiplicity of proceedings. (For more on the Enercon dispute read here, here and here)

Madhulika then reported on the inclusion of Indian patents in the search database of the European Patent Office. The database, currently covers patent information of 90 countries. This tie up between the Indian and the European Patent Offices will ensure increased visibility, technology transfer and ease of search. Her next post was the announcement of the admission for the CSIR-URDIP PG Diploma in Patinformatics. She writes that the “course has been designed to train the candidates in the art of patent searching, reading and analysis for the purpose of creating pate `       nt landscapes, identifying research gaps, competitive intelligence, new venture evaluation, patent portfolio management and techno-legal studies (Patentability, Validity, Infringement and freedom to operate).” The last date for application is June the 20th and the instructions to apply online are here. More details can be found on the website: www.urdip.res.in/patinformatics.

Rajiv then brings us this very interesting post on distributed infringement focusing on the case of Limelight Networks v. Akamai Technologies of the United States Supreme Court. The case dealt with question as to whether the users of a certain patented technology in performing a few steps which would infringe the patent, cause a liability on the company providing this technology. The Supreme Court rules unanimously that there was no liability on the provider. He then goes on to analyse the Indian position on the same.

Spadika then informed us about an opening for a 6 month research internship at the South Centre in Geneva at its headquarters in Geneva. She writes that the work there is designed to give interns exposure to the various perspectives that exist on developmental issues involving IP, such access to knowledge and innovation. It is a paid internship, carrying a stipend of 2,000 CHF per month (travel, insurance, etc to be borne by the intern). The internships start in July and January. For more information, read here.

Our last post for the week was a guest post by Prashant. In this post he reviews Ananda Chakrabarty’s (yes, the Chakrabarty from Diamond v. Chakrabarty) book titled Bugging Cancer. In this book he traces the strory of two scientists who use microorganisms to cure cancer without the side effects of chemotherapy. He observes that the book is an engaging read but points out areas that they could have additionally focussed on for a more complete picture. The book can be bought here.

International Developments:

  1. IPKat reports that the CJEU has ruled that users may browse the net without the permission of copyright owners as the caching of data would be the incidental storage of the data. It would be overwritten in time by other data depending on the end users capabilities.
  2. IPKat also reports that the Attorney General of the European Court of Justice in his opinion to the Court says that a Member State may authorise libraries to digitise individual works without rightholders’ consent.

 

Thomas J. Vallianeth

Thomas is a third year law student at the National Law University, Jodhpur pursuing a B.Sc. LL.B. (Hons.) course. His first exposure to IP law was at a workshop that he attended in High School and ever since then, he has pursued a keen interest in the field. However, his real interests lie in the interfaces between Technology Law and IP, with an active interest in the Open Source movement.

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