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A Belated SpicyIP Weekly Review (10th -16th March, 2014)


reviewThis week saw some interesting activity on SpicyIP as well as in the world of IP itself. We began with Gopika informing us about the WIPO-WTO colloquium for teachers of IP. The colloquium was opened to lawyers, researchers, university teachers and economists working in the field. She reports that there are twenty-two places in the colloquium for applicants from developing countries and countries with economies in transition whose travel, accommodation and subsistence costs would be covered by the organizers. Applicants are also required to identify a specific topical IP or legal policy issue that is currently under active debate or review in their country or region on which they can make a short presentation as well as prepare a paper for subsequent publication. The deadline for submitting applications is the 30th of March, 2014.

Following this was a post by Aparajta on parallel imports in which she reports on a recent Delhi High Court judgement that upholds the international exhaustion principle, but still requires the defendant to establish the fact that it had been placed onto a market worldwide and that it was legitimately purchased from that market.

Spadika reported that the Delhi high Court had recently refused an injunction in Living Media Ltd’s (of the “India Today” fame) application for an injunction against Alpha Dealcom restraining them from using the phrase “Today” in the mark “Nation Today”. The Delhi High Court held that there was no prima facie infringement as the usage of the word by the Alpha Dealcom used a visual emphasis on the word “Nation” and not on the phrase “Today” as in the case of Living Media and therefore was not likely to cause confusion in the minds of consumers. Spadika had also posted a Spicyip tidbit about how India was the second largest user of the PCT system among developing countries with more than 200,000 international patent applications being filed in a single year.

I carried a post on a trademark passing off and copyright infringement action between two country liquor distillers. In this case the Bombay High Court followed the test laid down in Cadila Health Care v. Cadila Pharmaceuticals and stated that the similarities in a mark ought also be considered and the court must in a claim of passing off consider other factors such as the consumer base who are in this case mostly illiterate people with an imperfect memory and therefore refused to vacate the injunction. I followed this up with a tidbit about the 2015 US News rankings for IP Programs in the US. Stanford University these rankings with Berkley coming in second. George Mason University saw the biggest drop in ranking on the list.

Swaraj’s post, which is was the highlight of the week on Spicyip, was the second part to his series “Taking IP on a Spin”. In this he discussed how certain measures are used to increasingly put pressure on Indian IP by the Big Pharma lobby in the use, and how the Indian IP regime was always portrayed to be “illegal”. He argues that “multi-lateral treaties such as the controversial Trans Pacific Partnership (of which PhRMA and Pfizer were the two biggest lobbyists), bi-lateral agreements such as the EU-India “Free trade” agreement or even the unilateral measures such as the USTR’s Special 301 process – are all much more malleable in terms of deeming India’s policies illegitimate as they all seek to create new norms altogether – norms that have little to no evidence supporting them as being beneficial.” He also adds as an optimistic observation, “a lot more voices have been speaking up more strongly against their factual misrepresentations and pressure tactics that have been used against India’s policies. These voices may not wield the same amount of influence on policy as Big Pharma but it’s getting to a point where it’ll be hard to continually ignore them as well.”

International IP developments

The past week saw a number of prominent developments on the International front as well. The Yale Law School announced that it would be hosting a conference on Innovation Law Beyond IP on the 30th of March. To expand the discussion that would take place on that one day, the blog ‘Balkinization’ announced a symposium to discuss some initial thoughts on the conference papers, and more broadly on how we should define our field as scholars as innovation.

Meanwhile Google claims to have identified the ownership history of Suffolk Technologies LLC that accused the world’s largest search engine’s owner of using its Internet-search technology – Glodman Sachs and previously even British Telecom. This Bloomberg article reveals an increasing worry among large corporations about the practice of other large corporations hiding behind small entities to avoid being counter sued for patent infringement.

The Obama administration in the US claims to have make a last step towards completing privatisation of internet core infrastructure oversight, namely the central root zone of the domain name system.

In a major setback to Myriad Genetics, a company that recently lost litigation to protect its patent over genetic tests to determine Breast Cancer, a federal court denied an injunction against a competitor who was offering a similar test on the basis of infringement of patents not invalidated by the court ruling.

Ruth Okediji from the University of Minnesota Law School and University of Virginia Professor Margo Bagley recently published a book with the OUP called “Patent Law in Global Perspective” containing articles on a wide variety of topics by well-known patent academics including not only Professors Okediji and Bagley but also Rochelle Dreyfuss, Arti Rai, Dan Burk, and Christopher Heath (among many others). This is definitely interesting and worth a read!

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Thomas J. Vallianeth

Thomas is a final year law student at the National Law University, Jodhpur pursuing a B.Sc. LL.B. (IP 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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