In a surprising ruling by the Federal Supreme Court of Germany (BGH) recently, well known German chocolate brand, Ritter Sport (“Ritter”) won exclusive rights to square packaging for its chocolates. The Court rejected the appeal by competitor Milka, a Swiss chocolate company that had been trying for almost a decade to challenge Ritter’s trademark protection for shape. Decision and Reasoning The Judges held that the square shape of the bar was not functional as it did not add any essential…

SpicyIP Weekly Review (July 27 – August 2)

by Adyasha Samal August 3, 2020

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Topical Highlight What’s in a Stream? The Confounding Case of IPRS’s Live-Streaming Tariffs Divij wrote about the confusion created by Indian Performing Rights Society’s newly released tariff scheme for live streaming of online events and live/disc-jockey performances. He first discusses the problems with the scope of the notice which defines ‘live performance’ as music by performers in person, and disc jockeys as playing of a sound recording. He then explains the lack of clarity as to whether digital streaming of…

Delhi High Court’s Dynamic Injunction in Favour of Disney: An Unclear and Overbroad Exercise?

by Nikhil Purohit August 3, 2020

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Recently, in a suit filed by Disney for protection of its copyrighted content, the Delhi High Court granted the interim relief in its favour. As aptly described in the order, Disney is ‘in the business of creation, production and distribution of motion pictures/cinematograph films.’ It filed the impugned suit against certain ‘rogue’ websites that were illegally making its copyrighted content available on their platforms. Through the injunction, the court has restrained the ‘rogue’ websites arrayed as defendants in the suit,…

Announcing the Winners of the 1st Shamnad Basheer Essay Competition on IP Law!

by SpicyIP August 3, 2020

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On May 14, 2020, on the occasion of Shamnad‘s 44th birth anniversary we had announced the first edition of the Shamnad Basheer Essay Competition on Intellectual Property Law. We opened the topic selection out to participants – asking them to choose any topic they wanted so long as it related to IP. And encouraged participants to draw inspiration from Shamnad’s scholarship. Despite being announced in the middle of a pandemic, the response to the essay competition has been overwhelming –…

Trade Secrets Protection and Incentives to Innovate: Scrutinizing Section 91 of The Personal Data Protection Bill, 2019

by SpicyIP July 30, 2020

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We are pleased to bring you a guest post by Sahaja Burde, on the ongoing regulatory efforts surrounding ‘non-personal data’. Sahaja is a 3rd year student at ILS College, Pune. In this post, Sahaja examines the provisions of the Personal Data Protection Bill, 2019 dealing with non-personal data and their interplay with copyright and trade secret law in India. Trade Secrets Protection and Incentives to Innovate: Scrutinizing Section 91 of The Personal Data Protection Bill, 2019 Sahaja Burde Introduction…

What’s in a Stream? The Confounding Case of IPRS’s Live-Streaming Tariffs

by Divij Joshi July 29, 2020

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Angry-looking musician holding a mike on a stage

The Indian Performing Rights Society (IPRS) has been keeping busy during the COVID pandemic. In an undated notice, uploaded earlier in July, it announced a new tariff scheme for ‘live-streaming of online events and live/disc-jockey performances’. After receiving backlash from singers, musicians and popular press, reports have emerged that the tariffs have been put on ‘hold’ until September, 2020. In this post, I will examine some of the issues and concerns this notice has raised. [Important Edit 29/7: I missed…

Functionality in Copyright Law : CJEU Decision in Brompton Bicycles

by Mathews P. George July 29, 2020

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In this post, I would like to discuss a recent judgment of the Court of Justice of the European Union (CJEU) in Brompton Bicycle (C-833/18). This judgment is relevant in the context of Section 52(1)(w) of the Copyright Act which provides as follows: “The following acts shall not constitute an infringement of copyright, namely:- (w) the making of a three-dimensional object from a two-dimensional artistic work, such as a technical drawing, for the purposes of industrial application of any purely…

Tattoos: The Tussle between Copyright and Publicity Rights

by Adyasha Samal July 28, 2020

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The world’s attention was first drawn to the copyrightability of tattoos when Victor Whitmill, the artist behind Mike Tyson’s face tattoo, sued Warner Bros for an imitative tattoo worn by an actor in Hangover II. Since then, I find that there has been a raging discussion regarding tattoo artists’ copyright over their tattoos, including issues like fixation, ownership and fair use. This post does not focus on these questions of copyrightability. Instead, it develops upon an important point raised by…

Trademark

What Kind of Trademark is ‘Make in India’? A Brief Academic Inquiry

by SpicyIP July 28, 2020

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We’re pleased to bring you a thought provoking post from Dr. Sunanda Bharti, on the ‘Make in India’ trademark. In this post, Sunanda examines the now famous ‘Make in India’ mark and raises the question of whether it actually acts more like a certification trademark. Sunanda is an Assistant Professor in Law at Delhi University and has written several guest posts for us, which can be viewed here. What Kind of Trademark is ‘Make in India’? A Brief Academic Inquiry…

SpicyIP Weekly Review (July 20 – 26)

by Namratha Murugeshan July 27, 2020

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Topical Highlight Does JioMeet’s GUI Infringe Copyright in Zoom’s Software? Nikhil wrote about the controversy of JioMeet’s GUI infringing Zoom’s software. Addressing the controversy that ensued after JioMeet was released, the issue of non-literal copying of computer software is examined. Nikhil explores the primary considerations that courts would need to address on the issue and the possible outcomes. First, the copyrightability of Zoom’s GUI is analyzed under Section 2(o) and Section 2(ffc) of the Copyright Act. Then, the particular elements…