SpicyIP Weekly Review (May 14 – 20)

Prashant brought us our topical highlight of the week – a post on the announcement by the Department of Industrial Policy and Promotion (DIPP) of their deal with the World Intellectual Property Organisation (WIPO) to establish Technology and Innovation Support Centres (TISC) in India. TISCs are meant  to provide innovators in developing countries with quality technology, information and related services to help them create, protect and manage their intellectual property. Prashant questions this deal – as the DIPP could have chosen to collaborate instead, with the National Institute of Intellectual Property Management (NIIPM) or with India’s IP law firms – as this move would divert business away from India.

For our thematic highlight, Sreyoshi Guha, our Fellowship applicant brought us a very interesting post on the recent dispute between Sony and One Plus. The spat began when Sony did not take well to One Plus’ advertisement, which used ‘Kaun Banega Crorepati’ to state that the One Plus 3T was the ‘best rated smartphone in India. Sreyoshi examines how this advertisement might infringe Sony’s copyright and other IP rights. With regards copyright infringement, Sreyoshi examines whether this could said to be infringement of the show as a cinematographic film, and/or infringement of the underlying concept note. In conclusion, she looks into whether the present advertisement could qualify as a claim of passing off.

Prateek started our week with his post on Ajanta Pharma v. Theon Pharmaceuticals, a decision that deals with trademark infringement. Ajanta had registered the mark ‘FERANTA’, while Intas used the mark ‘INTAS FERNITAS’. Justice Patel found that the marks weren’t deceptively similar, and hence held that there was no trademark infringement. Prateek deconstructs the ratio of the judgement, and emphasises on the Defendants argument that there was no trademark infringement as the mark was coined in accordance with standard industry practice. In conclusion, Prateek discusses pertinent points raised by the judgement: the distinction between Sections 29(1) and 29(2), whether marks have to necessarily fall under sub classes to qualify for infringement, and the determinants of the ‘likelihood of confusion’ standard.

Prateek then wrote on the Bombay High Court decision of Cello v. Modware that discusses design infringement and passing off. The Court found that the three elements of passing off: reputation and goodwill, misrepresentation, and damage were all met in the present matter – making out a case of passing off. With regards to design infringement, the Court found that Cello’s design was sufficiently original, and Modware was guilty of infringement.

I ended the week with my post on the Calcutta High Court decision of Rajat Agarwal v. Spartan Online. This dispute centres around the popular poker website, earlier www.spartanpoker.com,, and now www.thespartanpoker.com. The Plaintiffs and the Defendant had formed a partnership to launch www.spartanpoker.com, which then was dissolved on a falling out between the parties. After the Plaintiff was removed from the board of directors, the Defendants formed a new company, Spartan Online, and launched the website www.thespartanpoker.com. The Plaintiff raised arguments of passing off, relying on the famed Satyam Infoway Ltd. v. Siffynet Solutions (P) Ltd. to hold a domain name akin to a trademark. While the court recognised this as a principle of law, it found no trademark infringement as the domain name www.spartanpoker.com was not identified with the Plaintiff.

International Developments

  1. KitKat denied UK trade mark for four-fingered chocolate bar
  2. Federal Court upholds Google trademark
  3. AbbVie’s Humira Loses Patent in Coherus’ Petitions

Inika Charles

Inika is a fifth year student at National Law University, Jodhpur, and is on the founding Board of Editors of the Journal of Intellectual Property Studies. She has a strong interest in Intellectual Property, and is fascinated with the intersection of IP with Technology and Media law. You can contact her at [email protected], or on Twitter: @inikacharles

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