SpicyIP Weekly Review (March 8–14, 2015)

spicyip weekly review

In the highlight of this week, Shamnad Sir reported a victory in his writ petition before the Madras High Court which challenged the constitutionality of provisions relating to the Intellectual Property Appellate Board (IPAB). In this first round, which started in 2011, critical provisions of the Trademarks Act which provide for the establishment of the Board were struck down as unconstitutional. Shamnad Sir wrote that the Court held the provision providing for government officers to be elected as judicial members to the Tribunal as invalid and that any committee constituted to select members for the Tribunal must mandatorily be predominated by judges and those with requisite judicial qualifications. He also notes that the Court held that a technical member, without judicial qualifications, could not become a Vice Chairman or the Chairman of the Board. The Judgment of the Court has now been uploaded and can be found here.

In the first post this week, Swaraj compiled several comments on the Draft IP Policy prepared by the IP Think Tank that are available online. Relying on a fairly long list given to us by Centre for Internet & Society (CIS), he added a few more that have been available on the internet.

In the second post, Spadika discusses the Make in India flavoring that appears to have been added to the Nitto Denko case. She discusses the suggestion of the second committee (constituted by the Delhi High Court). The Committee suggests that the Patent Act be amended to allow for expedited patent examination if the applicant has started manufacturing the invention in India or undertaken to start manufacturing in India within two years from requesting expedited examination. She analyses this recommendation against the TRIPS provisions and questions the vague, and baseless, conclusion of the Committee that it is indeed TRIPS-compliant. She also questions whether the move will actually incentivize patent holders to Make in India since the incentive seems to be far outweighed by the added costs of setting up shop in India. She concludes that it may be possible that the suggestion is not TRIPS compliant and that the amendment is not worth the trouble.

In the fourth post for the week, Gopika posted an update on the on-going writ petitions pertaining to Trademark Agent Exams in India. She focuses on a recent Order of the Madras High Court in the writ petition filed by Mr. Muralidharan. The High Court was unsatisfied with the explanation that sought to justify why the Exam was not conducted post 2010. The Court, inter alia, directed the respondents to conduct the TM Agent Exam in the first half of 2015-16, to look into the petitioner’s suggestions regarding training courses and determine if the assistance of institutions was required for conducting the exam.

Thereafter, Mathews put up a tidbit on the Report of the Special Rapporteur to the Human rights Council that focuses on the impact of IP regimes on the enjoyment of right to science and culture. The Report studies copyright from an oft-neglected perspective.

In the next post for the week, Balaji argues against the recent (and illogical) resolution of the Tamil Film Producers’ Council to halt the release of movies for a three-month period in order to combat the problem of movie piracy. He rightly argues that the Council would do better to understand piracy as an inevitable phenomenon instead of cutting out the revenue and keeping in the piracy. As the Council is set to hold stakeholder consultations, there is no finality to the decision as yet.

Next came Kiran’s extremely powerful (and long!) post on the Tobacco Plain Packaging Controversy. She discusses the arguments surrounding provisions of the international agreements which are under the dispute in the WTO currently. She also lists out other important consideration central to the plain packaging deliberation. She discusses the implications of plain packaging as under the TRIPS, TBT and the GATT. She then presents the slippery slope that this move finds itself on- where do the dominoes stop? She concludes that it is highly unlikely that the government may impose plain packaging on other disfavoured products. Thereafter she carefully considers the legitimacy of the Forbidden Fruit Theory that has been advanced and concedes that there is much validity attached to it. She concludes, by discussing the implications that the controversy will have on India, especially as it is an intervening third Party in the dispute.

In the final post for the week¸ Gopika brought back the Basmati-GI story into discussion, noting that recently the IPAB allowed a Madhya Pradesh farmers’ society to implead itself in the ongoing litigation that started way back in 2009. After briefly recapitulating the events leading up to this Order of the IPAB, she noted that the IPAB found the New Darpan Social Welfare Society to be a just and necessary party before allowing it to be impleaded.

Other National Stories

  1. iVoice Ventures Consolidates “iFon” Trademark Battle Against Apple Inc’s “iPhone” in India (http://www.prweb.com/releases/2015/3/prweb12552986.htm)
  2. German firm Boehringer Ingelheim’s patent for asthma drug revoked  (http://economictimes.indiatimes.com/articleshow/46513069.cms?utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst)
  3. Ilaiyaraaja Irked with Copyright Infringement of his Songs (http://timesofindia.indiatimes.com/entertainment/telugu/music/Ilaiyaraaja-irked-with-copyright-infringement-of-his-songs/articleshow/46477191.cms)

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