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SpicyIP Fortnightly Review (March 11 – 24)


The topical highlight for this fortnight has been Pankhuri’s post on the Delhi High Court’s judgement in Sphaera Pharma Pte. Ltd and Anr. v. Union Of India, where the Court reiterated that the Patents Act does not offer any scope for considering a request for patent examination filed beyond the prescribed period of 48 months from the date of filing of the application. In the present case, the plaintiff claimed that the request for examination was not properly uploaded although the intention was to file within 48 months of the date of filing. However, the High Court stated that the Patent Act read with the Rules does not provide any scope for an examination beyond the prescribed time.

The thematic highlights for the fortnight are –

Prateek’s post deconstructing the Global Innovation Index – a ranking of countries based on metrics to examine innovation. Prateek helpfully breaks down the structure and the process of the GII and the methodology they use to arrive at their findings. He also critiques the GII’s definition of innovation and its use of some factors superfluous to ‘innovation’.

My post in response to Amitabh Bachchan’s recent rant about copyright limitations. I have argued that copyright limitations and exceptions are important for building a robust public domain and fulfills the intended goals of copyright law and intellectual property protection, namely, encouraging greater creativity and allowing the enjoyment of cultural and scientific works.

Next, I traced an interesting trend in proceedings under the UDRP, where the strange theory of retroactive bad faith has slowly been reversed and buried. The theory allowed trademark holders to claim that domain name registrants had bad faith intention (to misuse the trademark) even though the trademark never existed. Thankfully, the reversal by newer panels should mean that we don’t see much of retroactive bad faith again.

Mathews wrote of the Delhi High Court’s ex parte order in which the Court awarded a decree in favour of Coca Cola’s brand Kinley. Mathews talks about the scope of trademark dilution under Indian law and examines whether this judgement expands the scope of dilution to non well-known marks.

Pankhuri wrote an update on the patent working PIL filed in the Delhi High Court by Prof. Basheer, where the High Court has directed the government to file an affidavit to provide a reasonable timeline within which the patent working issues can be resolved, which may require amendments to the law.

Prashant posted about the Department of Industrial Policy and Promotion’s new scheme inviting universities to host chairs on IP law. The scheme replaces the earlier scheme for hosting IP chairs under the MHRD. Prashant notes that the scheme has positives, but it still does not go far enough in its ambition, which may be better fulfilled through specific research grants.

Other Developments

India

Judgements

Ramesh Khatanmal Lulla vs Mohammad Yusuf Abdul Gaffar — Bombay High Court [March 9, 2018]
Suit was filed for permanent injunction and related reliefs against the infringement of the mark GAI CHHAP. The lower court passed an interim injunction in favour of the plaintiff, which has been challenged by the appellant-defendant in this order. The Court held that it must be examined if the impugned mark is prima facie similar or identical to the registered mark, and if the essential features of the latter have been copied. Then irreparable injury to the plaintiff will be presumed. The Court found that all these considerations were examined by the lower court, and hence dismissed the appeal.

M/S.Thalappakatti Naidu Ananada Vilas Biryani Hotel v. Thiru Kasim Bai — Madras High Court [February 27, 2018]
Suit was filed for permanent injunction and related reliefs against the infringement and passing off of the mark THALAPPAKATTI. The defendant undertook to refrain from using the said mark in his business, and thus, the Court summarily passed a permanent injunction and decreed the suit accordingly.

M/S KRBL Limited v. M/S P K Overseas Pvt. Ltd. — Delhi High Court [March 1, 2018]
Suit was filed for permanent injunction and related reliefs against the infringement and passing off, but the defendant raised an objection against the territorial jurisdiction of the Court. The trial court added it as one of the issues to be considered during the trial, as a question of law. The defendant moved the High Court through a writ petition to direct the trial court to consider this issue as a mixed question of law and fact  but withdrew it later, though the respondent/defendant refuted this and reserved his right to oppose such a prayer. The Court granted the withdrawal, and remanded it back to the trial court for necessary action, without commenting on its merits.

Dolby International AB & Anr. v. Das Telecom Private Limited & Ors. — Delhi High Court [March 6, 2018]
Suit was filed for permanent injunction and related reliefs against the patent infringement. The plaintiff sought amendment of pleadings and the Court granted the same.

M.Ponnusamy v. Latha Match Industries — Madras High Court [March 8, 2018]
Suit was filed for permanent injunction and related reliefs against the copyright and trademark infringement of the plaintiff’s GOKUL Label. The suit was however withdrawn in this order. 

M/S Okaya Power Ltd. v. M/S Aqua Healer & Ors. — Delhi High Court [March 12, 2018]
Suit was filed for permanent injunction and related reliefs against the copyright and trademark infringement of the plaintiff’s MINJET mark. In view of the evidence and averments on record, and that there were no prospects of the defendants successfully defending the allegations, and the Court saw it fit to pass a summary judgment. The suit was decreed accordingly. 

Suit was filed for permanent injunction and related reliefs against the copyright infringement of the plaintiff’s work. The plaintiff was able to lead evidence that suggested the defendant’s actions amounted to copyright infringement, but the defendant undertook to pay compensation and costs of the litigation to the plaintiffs, and was amenable to the permanent injunction, and hence, the suit was disposed off accordingly.

Novex Communication Private Ltd. v. National Restaurant Association & Ors. — Delhi High Court [March 7, 2018]
Suit was filed for permanent injunction and related reliefs against the copyright infringement of the plaintiff’s work. The cause of action related only to certain defendants to the suit, and the Court found that the suit against the defendant-association was misconceived and not maintainable. The Court disposed off the suit, and directed the plaintiff to file a fresh suit against Defendant Nos.2-5.

M/S.Thalappakatti Naidu Ananada Vilas Biryani Hotel v. T.S.Thalappakettu Briyani & Fast Food Pvt. Ltd. — Madras High Court [February 28, 2018]
Suit was filed for permanent injunction and related reliefs against the infringement and passing off of the mark THALAPPAKATTI. The plaintiff sought to withdraw the suit.  (same for all other Thalappakatti cases).

S.V.Balasubramani vs M/S.Sri Veera’s — Madras High Court [March 9, 2018]

This order gave effect to a memo of compromise arrived at between parties to a suit for permanent injunction and related reliefs against the infringement of the plaintiff’s mark VEERA’S CREATIONS/SRI VEERA. The suit was decreed accordingly.

Ashoka Distillers & Chemicals Pvt. Ltd. v. Ads Spirits Pvt. Ltd. — Delhi High Court [March 15, 2018]
Suit was filed for permanent injunction and related reliefs against the infringement of the plaintiff’s mark MATWALA. However, on facts, the Court found that the product was only sold in Haryana, and hence the Delhi HC did not have the territorial jurisdiction to try the suit. Further, it was of the opinion that there could be no quia timet action as there was no indication that the defendant planned to launch the product in Delhi. The Court allowed the interim injunction passed earlier to operate till the suit could be transferred to the appropriate forum.

Shri Rakesh Kumar Mehta v. Shri Dushyant Kumar & Anr. — Delhi High Court [March 13, 2018]
Suit was filed for permanent injunction and related reliefs against copyright infringement of the plaintiff’s videos on Youtube. The court directed the first defendant to give the plaintiff the details of the website on which the impugned content was uploaded, and directed the second defendant to disclose the identity of the person uploading the videos and disable them. The suit was disposed off in the above terms.

Kiran Shoes Manufacturers v. M/S Maruti Footwear Company — Delhi High Court [March 13, 2018]
Suit was filed for permanent injunction and related reliefs against the infringement of the plaintiff’s mark GOLDSTAR. The defendant initially appeared before the court, but then stopped appearing or communicating with his advocate. The Court noted that there was a huge demand and reputation for the plaintiff’s products, and since the defendant did not appear, the averments made by the plaintiff were deemed to be true and correct. The suit was decreed accordingly.

Federal Express Corporation v. Fedex Securities Limited & Ors. — Delhi High Court [March 13, 2018]
Suit was filed for permanent injunction and related reliefs against the infringement of the plaintiff’s mark FEDEX. The plaintiff appealed against a lower court order, which held that the Court did not have the territorial jurisdiction to try the case. The Court allowed the appeal.

News

  1. FIR against patent official for demanding bribe upheld
  2. Amazon Prime Music ties up with IPRS for content
  3. DIPP likely to dispose of 2 lakh pending patent applications in 2 yrs
  4. Sixty health organisations write to Narendra Modi, seek compulsory licences for tuberculosis drugs
  5. BT 3 cotton seeds banned by govt, so farmers now buying them online
  6. Super Cassettes obtains injunction orders from Delhi High Court against several MSO’s / LCO’s over copyright infringement
  7. Kerala police arrest members of piracy websites Tamilrockers and DVD rockers
  8. Madhya Pradesh loses basmati war, fails to get GI tag
  9. Govt not using patent law effectively: Pharma body
  10. Saroj Khan, N Chandra to Take Action Against the New ‘Ek Do Teen’
  11. Tips – Novex Alliance to Strengthen the Copyright Landscape of the Indian Music Industry

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