A Belated Weekly Review (May 26th to June 1st, 2014)

weekly-reviewWe started the week with Spadika’s post on Teklo Corporation v. Survo Ghosh, a case of the Delhi High Court in which Justice Endlaw ruled that misuse of copyright is not a defence to infringement. The plaintiffs alleged that their copyrighted software was being infringed by the respondents. The respondents, instead of relying on the usual defences available under the copyright act, instead set up the claim that the plaintiffs had misused their copyright in the software by providing in their terms of license, bundled maintenance service agreements and training fee, exorbitant penalties, etc. The court rejected the claim by noting that the defences provided under S.52 were exhaustive, the respondents while pleading for an equitable relief had not approached the court with clean hands, by upholding such a claim the court would be granting the right to an individual to unilaterally decide when the copyright of the owner ends and that an illegal action (infringement) cannot be used to right another illegal action (misuse of the copyright).

Aparajita then followed this up with a case note on the Madras High Court Decision in M.C. Jayasingh v. Mishra Dhatu Nigam Limited (MIDHANI).The case was regarding the alleged infringement of patents and design of prosthetic limbs developed by the plaintiffs. The defendants set up the defence that the patent was invalid and that there was no similarity between their products and that of the plaintiffs. The court went on to examine the validity of the patents and concluded that it did satisfy the requirements of novelty, inventive step and industrial application, but on the question of infringement, it concluded that infringement was no demonstrated. The court then went on to examine the claims regarding designs and stated that every prosthetic limb would take the shape of the bones and limbs that they attempt to replace and therefore no claim of infringement could be made out.

The next post was a guest post by Kartik Chawla, from NALSAR, who wrote about the Open Source Licensing and Google’s ARA project. The ARA project is a platform that attempts to build modular cellular phones that have components that can be detached and used as and when the need occurs. The license for developers using these platforms was analysed in the post and a number of worrying details were revealed in the analysis such as a possible chilling of speech, widely worded clauses, retention of some broad and unilateral powers by Google to name a few.

We then had Aparajita reporting on the trademark dispute that was cooking up over the Heritage brand of rice. LT Foods obtains rice from distributors and then resells it under their brand name ‘Heritage’. Heritage Foods which also sells dairy products under the mark ‘Heritage’ filed suit. Both companies had registered marks. LT Foods also filed suit before a single judge of the Delhi High Court for passing off and infringement. Initially the Single Judge returned the plaint on the basis that since they wore both registered users, the operation of S.28 of the Trademarks Act, 1999 would not allow any action by the Court. However the DB restored the plaint and noted that the validity of the registration of the marks was in challenge before the IPAB, and therefore the provisions of S..124 ought to have been considered. The court also ruled that prima facie it had territorial jurisdiction over both the claims.

Rajiv wrote next about the actions of the UK Police Intellectual Property Crime Unit (PIPCU) in taking down the website torrentz[dot]eu for allegedly hosting illegal content. The domain name was suspended on the basis of suspicion of the PIPCU that illegal content was hosted on the website. The Polish Domain name registry however restored the domain name the very next day on receiving information that the suspicion was unlawful. He also pointed out another instance where EasyDNS, a DNS domain name provider was also asked to suspend certain domain names that were suspected of hosting unlawful content. Interestingly, the notice issued to them only states that the courts may impose penalties on them if convicted of the offence and does not provide information regarding the involvement of any judicial body in the process. On arbitration, the arbitrator ruled in favour of EasyDNS and held that there was no order that recommended the suspension of the domains and that such a procedure if followed, could potentially lead to abuse.

Aparajita had the last post of the week and the SpicyIP highlight with a case comment on Wockhardt v. Remed Healthcare, a case involving a dispute over drug trademarks. She starts the post with a very crucial observation, as to how in the case of drugs as a class of goods, despite differences in the different marks, an overall similarity between them can also be dangerous owing to the consumer base and the effects of these drugs. The dispute was regarding the plaintiff’s mark ‘Mericobal Viva’ and the defendant’s mark ‘Mericobal’. The court in ruling for the plaintiffs held that the marks were indeed phonetically similar, the defendants could not claim the plaintiff’s acquiescence to the use of a mark as a defence and that the non-use of the mark between the date of registration and the date of actual use would be better addressed in a proceeding under S.47 of the Act.

International Developments:

  1. The IPKat reports that the EU Council’s opinion on the EU Commission’s draft of the Trade Secret directive has come in. There are a significant number of amendments that have been made including, inter alia the definition of what an unlawful acquisition of trade secrets are, flexibilities regarding the grant of injunctions and restriction of employees liability.
  2. The IPKat also reports that the new UK Copyright exceptions have come into force. The prominent new exceptions include exceptions for data mining by researchers and academics, exceptions for the differently abled, an expansion of the preservation exception among others.
  3.  Patently-O carried a post describing a trend of companies increasingly relying on the collateral value of their patent portfolios to raise financing.

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