SpicyIP Weekly Review (August 27 – September 2)

This week’s thematic highlight is Balaji’s post on the decision making process involved in the issuance of the CRI Guidelines, 2017. Through his post, Balaji analyses the response to an RTI application filed by him regarding the same. The information he requested via his application included inter alia, reasons for change in the 2016 Guidelines, details of the Expert Committee which recommended the issue of the 2017 Guidelines: its constitution, stakeholder consultations etc, and the final report finally by the EC including its recommendations. He then goes on to analyse responses to each of his queries. He concludes by outlining the arbitrariness behind the issuance of these guidelines, further arguing that regardless of any legal value contained by these guidelines – they are bound to be used by applicants and practitioners to some extent.

Our topical highlight is the two-part guest post by Eashan Ghosh (here and here) on the recent Delhi HC judgment in Turning Point Institute v. Turning Point. In Part I, Eashan familiarizes us with the facts of the case and deconstructs the claim of passing off as made by the parties, and also as finally settled by the Judge. He analyses the same against the three essential factors of a passing off action – goodwill, misrepresentation and damage. He argues that the application by the judge, of this three pronged test as laid down in the Jif Lemon case, to the facts of the present case was far from spotless.

In Part II, Eashan analyses the judgment with regards to the remaining issues in the case – honest concurrent use, and acquiescence and delay. He concludes his two part post by commenting on the length of the “interim” order – noting that while the decision is defensible on merits, it includes adjudication over a bunch of unnecessary and counterproductive factors.

First up, we had Pankhuri bring us an update on an earlier notification regarding the appointment of Justice (Retd.) Manmohan Singh as IPAB Chairman. Pankhuri notes that recent replies by the DIPP to a tweet by one of our readers are in direct contradiction with the information note accessible on the DIPP website. While the former indicates that appointment of chairman is still under consideration of the government, the latter (as reported earlier by Pankhuri) confirms approval by the cabinet of the appointment of J. Singh as chairman. Arguing that this contradiction gives rise to a lot of confusion, Pankhuri also views this appointment (and subsequent others to the IPAB) against the backdrop of the recent challenges to the Tribunal, Appellate Tribunal and other Authorities (Qualifications, Experience and other Conditions of Service of Members) Rules, 2017 – under which the appointments are to be made.

This was followed by Harsha’s refreshing perspective on content neutrality within the IP sphere: content neutrality in Personality Rights. Building upon a context made up of the recent SC judgment clarifying “Right to Privacy” as a fundamental right, and Prashant’s analysis of its effect on personality rights – Harsha notes that his concerns are centered on the effect of the judgment on personality rights as exercised by criminals. Outlining the Son of Sam law as it exists in the US, Harsha points us toward its only living Indian relative, the Prevention of Money Laundering Act, 2002. He finally ponders the possibility of a Son of Sam law in India, especially in a context where the recent judgment places commercialization of the criminal self beyond the scope of state control.

Rahul, then, updated us on a recent SC order staying an earlier Delhi HC judgment that struck down section 24(5) of the Protection of Plant Varieties and Farmers’ Rights Act. Noting that the SC stay order does not include reasons supporting the determination for stay, Rahul further argues that the impugned Delhi HC judgment is on firm legal footing, making it difficult to displace.

Pankhuri announced a call for paper proposals, issued by the International Academy of Comparative Law, for a special session on ‘Sharing Economy and the Law’ to be held on July 29, 2018 in Fukoka, Japan. The last date for submission of paper abstracts is March 30, 2018.

Finally, we had Vasundhara’s insightful post on the increasing trend of inaccuracy in IP news reporting these days. She traces the reasons behind this trend and notes that they include, inter alia, lack of IP awareness, and a lackadaisical attitude of most journalists today. She concludes by highlighting the importance of higher journalistic integrity and increased self-regulation, to promote education about IP among the masses consequentially promoting innovation and creativity in India.

International developments:


Sreyoshi Guha

Sreyoshi is a law student at Symbiosis Law School, Pune. Her favourite thing about Intellectual Property Law is Copyrights. She can usually be found doing one of three things: dog-earing her favourite pages of her books, looking up a Zomato menu, or day-dreaming of the day she'll finally meet John Mayer. She doesn't have any notable achievements, except probably that one time when she encountered a crazy pigeon, and lived to tell the tale. Send her your thoughts at: [email protected]

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