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SpicyIP Weekly Review (January 21 – 27)


The thematic highlight for this week is Divij’s two-part post examining the jurisprudence laid down by the Delhi High Court while determining online jurisdiction. In Part I, Divij outlines the context for his post, highlighting the problematic way in which jurisprudence around online jurisdiction has developed. He does this by studying four notable cases decided by the Delhi HC, and notes that although these cases have similar factual contexts, the HC has come to contrary decisions in these cases. Divij also observes that all these cases seem to heavily rely on the standards laid down by either Banyan Tree or WWE v. Reshma.

In Part II, Divij attempts to identify the issues underpinning this problematic approach adopted by the Delhi HC. He notes that the Delhi HC’s decisions lack a principled approach to the issue of jurisdiction, and he argues that this stems from the divergence in the court’s stance taken in Reshma & Banyan Tree. He finally puts forth two potential ways in which the Delhi HC can resolve the above – (a) to uniformly follow the “purposive availment” test as laid down in Banyan Tree, while assessing jurisdictional claims; and (b) a more objective, factual assessment of each case involving an analysis of the effects of a party’s online activities in a particular jurisdiction.

This week’s topical highlight is the recent copyright infringement suit brought against Ram Gopal Varma by Mr. P Jayakumar, over the alleged unauthorised use of his script in RGV’s upcoming film, ‘God, Sex & Truth’. I lay out the alleged factual context of the case, and then go over some of the plaintiff’s claims as outlined in the plaint. Finally, I highlight some of the things to look out for, as this case proceeds before the City Civil Court at Hyderabad.

I wrote on my interactions with Priyanka Khimani, Founder-Partner at Anand and Anand & Khimani, Mumbai. In an attempt to provide a context to the Anand and Anand & Khimani merger that took place in June, last year – I met with Ms. Khimani to document her thoughts on the merger, and her personal journey so far – including her experiences with IP, legal entrepreneurship, and the entertainment industry. By way of this post, I attempt to provide for our readers a glance into one of the minds behind the merger.

Next, Divij reported on the recent release of two documents by the Centre for IPR Promotion and Management (CIPAM), as an assessment of the Indian IP regime, namely – (1) Intellectual Property Rights Regime In India- Initiatives by the Government; and (2) Intellectual Property Rights Regime In India- An Overview. Divij highlights certain notable aspects of both the documents – interalia, that the first document provides helpful filing and enforcement statistics; that the second document has adopted a stance favouring access to health, lifted portions from SpicyIP without referencing the same, and has taken a conservative approach to the enforcement of John Doe orders in combatting piracy.

Other Developments

Indian

Judgments

S.R. Valves Pvt. Ltd. v. Super Refrigeration India Pvt. Ltd. & Others – Delhi District Court [January 15, 2018]

Suit was filed for permanent injunction and related reliefs against trademark infringement and passing off. The court found that the plaintiff was using the mark SUPER since 1993, while the defendant was using the trade mark SUPER for the 5 decades, the plaintiff has no exclusive right on the word SUPER. In the absence of any details of annual turnover and expenditure on promotion and advertisement, it cannot be presumed that in trade parlance the word SUPER is related only to the plaintiff business. The Court rejected the application for interim injunction.

Essel Vision Productions Ltd. v. Bharat Sanchar Nigam Limited — Madras High Court [January 4, 2018]

Suit was filed for permanent injunction against screening of their film ‘QUARIB QUARIB SINGLLE’ and to block all websites hosting contents that relate to plaintiff’s copyright protected cinematographic film (Ashok Kumar Order). The Court observed that in the light of the plaint averments, Section 62 of the Copyright Act is attracted, however, commercial courts have the jurisdiction to entertain this suit, and hence the suit was transferred to the appropriate forum, and this suit was withdrawn.

Goodyear India Ltd., Haryana v. Addl. CIT, New Delhi — ITAT Delhi [January 22, 2018]

ITO held that payment of trademark fee to a US company was an arms’ length transaction, and no recognizable benefit has been passed on to the appellant and therefore there was no rationale for the payment. The appeal was allowed for statistical purposes.

Kumaaravel v. Balasubramaniam — Madras High Court [January 3, 2018]

Suit was filed for permanent injunction and related reliefs against the passing off of the mark MADRAS COFFEE HOUSE. The plaintiffs submitted that their TM application was pending before the authority. The defendants however, had stopped using the mark in their business, and had shifted to the name ASHOK NAGAR COFFEE HOUSE. Hence, the suit was disposed off accordingly.

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.

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.

News

International

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]

One comment.

  1. ABCDEF

    Dear Spicy IP and Shamnad Sir,

    On some occasions you have diverted from IP topics and focused on general legal issues. Sometimes you have written on legal education. I request you to write a piece on legal education and the dictators running our National Law Universities. These people deliberately hire substandard faculty and keep NLU alumni out of teaching, as they are jealous and insecure. They are only interested in siphoning money, sucking up to judges and netas, and bulls***t moral policing. This also has in indirect impact on IP teaching and scholarship.

    Reply

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