The thematic highlight of the week was Prof. Basheer’s post on how Brazil and India have responded to issues of pendency in IP administration. Here, he points to two examples – Brazil’s radical idea to expeditiously approving pending patent applications through a ‘simplified process’, and India’s decision to deem 5,00,000 trademark applications as abandoned. Thankfully, the former decision has not been implemented yet, and latter decision has been stayed by the Delhi High Court and, as one of our readers informed us, has not had any visible effect on the processing of the ‘abandoned’ trademarks.
The topical highlight of the week is Rahul’s post on the Supreme Court’s order in which it has stayed the Karnataka High Court’s decision where the constitutionality of a provision which required 85% of tobacco products ‘ packaging to be covered in health warnings. As Rahul notes, the Supreme Court’s order rests on two presumptions, which are matters of evidence to be supplied by the Defendant’s – firstly, that the increase in the size of health warnings would have a material affect on the health outcomes of purchasers, and secondly, that there is, in fact, a link between cancer and use of tobacco.
Finally, Pankhuri informed us about the World Intellectual Property Organization (WIPO) and the World Trade Organization (WTO) organizing a two-week colloquium for teachers of intellectual property from developing countries and countries with economies in transition. The Colloquium will take place in Geneva, Switzerland from June 18-29, 2018.
Other Developments
India
Judgements
- Pentel Kabushiki Kaisha & Anr. v. M/S Arora Stationers & Ors.– Delhi High Court [January 8, 2018]
The Plaintiffs filed a suit for a permanent and interim injunction restraining the Defendants, from manufacturing, selling, advertising etc. an identical duplication or obvious and/or fraudulent imitation of the Plaintiffs’ copyright in the registered design of their ball points. The court based on sections 4, 19 and 22 of the Designs Act held that the features claimed by the Plaintiffs as unique in the ball point pens of the Defendants were already in existence in earlier manufactured ball point pens by the Defendants in different years from the year 2005 and thus were held to not be substantially new and original designs but mere trade variants. Accordingly, the court dismissed the application for interim injunction and vacated the interim order passed by the court earlier. - Ansari Bilal Ahmadlal Mohd vs Shafeeque Ahmed Mohammad Sayeed – Bombay High Court [January 12, 2018]
The respondent-plaintiff had filed a suit for infringement of its registered label mark of “SUKOON OIL” and/or its essential ingredients i.e. the word “SUKOON” in class 03 and class 05, pending hearing of which the court had granted prayer clauses of the Notice of Motion filed by the plaintiff. Relying on the Bombay High Court’s observations in Alaknanda Cement Private Limited v. Ultratech Cement Limited, the court held that the majority of consumers of these products were labourers from Bhiwandi area and the test applicable was that of a person of average intelligence and imperfect recollection and concluded that the conclusion drawn by the Single Judge of this court was reasonable and judicious. The court while dismissing the appeal due to lack of merits, further held that and a prima-facie case of passing off had been made out by the plaintiff while the appellant-defendant could not make out a case for interference. - M/S. Rspl Limited v. Prithvi Chemicals— Delhi High Court [January 12, 2018]
The Court found that due to extensive usage over time (since 1975) the plaintiff’s mark, GHARI had become distinctive and acquired substantial reputation and goodwill. It also found, based on the evidence on record, that there was no authorisation from the plaintiff allowing the defendant to use the mark, or any modification thereof; and hence the defendant acted in a malafide manner in infringing the trademark and copyright of the plaintiff, causing immense public harm and injury to plaintiff. The suit was decreed accordingly, with costs. - Sharad Agrawal v. Ministry Of Information— Central Information Commission [January 15, 2018]
The Censor Board refused to handover a copy of the censor certificate of a film under an RTI filed by the appellant, citing concerns regarding piracy and copyright infringement that may result from the disclosure. Hence, relying on CBSE v. Aditya Bandopadhyay, the CIC held that Section 9 of the RTI Act is sufficient grounds for denial of information pertinent to the possible infringement of copyright of original holder of rights subsisting in the films listed in the RTI Application. - Mukesh Garg v. The State Of Madhya Pradesh— Madhya Pradesh High Court [January 15, 2018]
This was an application for anticipatory bail where the accused was caught with duplicate electricity wires of Finolex company. The appellant argued that the actions of the accused did not constitute an offence under the Copyright Act, and those criminal offences under the Trademark Act are bailable, hence the application must be granted. The Court found that Finolex had registered their logo under the Copyright Act as an artistic work, and was of the opinion that since the accused was caught with the duplicate wires and logos this case was not fit for anticipatory bail. - Telemart Shopping Network Pvt. Ltd. v. TVC Life Sciences Ltd. & Another— Delhi High Court [January 16, 2018]
This order dealt with an appeal against an ex parte interim injunction in a suit for permanent injunction and related reliefs against the passing off of the mark SANDHI SUDHA, an Ayurvedic joint pain relief oil (used since 2008). The defendants were using the mark SANDHEE SUDDHAM. The Court found that the two marks were phonetically similar, and also had similar packaging and consumer base. It also observed that the word SANDHI was not a generic word. Based on these, the Court confirmed the lower court order. - Gopal Ch. Ghosh @ Gopal Chandra v. Unknown– Calcutta High Court [January 18, 2018]
This order related to a bail application in a criminal case for passing off of goods. The accused argued that he was falsely implicated in the case. The Court, bearing in mind the nature of allegations and the fact that the incriminating articles have been seized and in view of the period of detention, and the materials placed on record, granted the bail application. - Kleenage Products India Pvt. Ltd. Vs Registrar of Trademarks and Anr. – Bomay High Court [January 17, 2017]
The judgement relates to a petition against the removal of the petitioners trademark KLITOLIN b the registry without prior notice. The Court held that a trademark cannot be removed from the register without following the mandatory process under the Act.
News
- Delhi HC restrains Flipkart from selling counterfeit goods of Cosco India
- Government of Odisha adopting Creative Commons License to Promote Transparency and Access to Knowledg
- Israeli firm sues diamond companies over software ‘piracy’
International
