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SpicyIP Weekly Review (March 4 – 10)


By way of a special report that I highly recommend to our readers, Prashant & Balaji brought us this week’s topical highlight. The report draws on a recent coverage by The Hindu reporting limited access to Bedaquiline, which has been touted to be the most promising drug for the treatment of multi-drug resistant tuberculosis (MDR-TB) and is patented by US based company, Janssen. Subsequently diverging from the Hindu report, Prashant and Balaji take us through their own research on the subject and reveal notable aspects flanking the issue. These include deeper investigations into the reason behind the low access rates to the drug, which is revealed to be the approval of the drug without the conduct of any Phase III clinical trials. This observation is then supplemented by speculation on the possibility of the Indian government essentially conducting “de-facto” clinical trials on behalf of Janssen, the foreseeable dangers of such a practice and the true nature of clinical trial data exchanged between the Indian government and Jansen.

Prashant and Balaji also wrote an update to the report summarised above. This was based on the correspondence between Janssen and the Ministry of Health, obtained by way of an RTI application. They highlight key aspects of this correspondence between the two parties, including interalia the exact nature of the data sharing arrangement between the two parties, the conditional access programme limiting access to the drug, as proposed by Janssen and the differences in this conditional access as functional in jurisdictions such as the US & UK and of that in India.

The thematic highlight is Rahul’s post reporting on a recent Delhi High Court judgment on patent infringement comprising three patents over insecticides and herbicides. Rahul outlines the factual matrix of the case, noting that the three patents in question relate to a herbicidal composition of two compounds – known to effectively tackle two different types of weeds together. He notes that the plaintiff sued for infringement primarily on the ground that the defendant participated in a tender for the supply of a composition consisting of the same compounds, roughly in the same proportion. On the whole, Rahul agrees with the court’s decision on the matter, which confirmed infringement on grounds including interalia – lack of anticipation by prior art, and substantial similarities between the two compositions.

Prashant also reported on another recent coverage by The Hindu on the recent “expression of interest” (EoI) published by the World Health Organisation (WHO) inviting pharmaceutical companies to pre-qualify their products for procurement programs administered by WHO. Highlighting the misreportage by the paper on the subject, Prashant notes that the report gives the impression that the inclusion of bedaquiline and delaminid, in the WHO’s EoI is going to lead to the drugs being more affordable. Among a few other observations on the subject, he argues that the reality of the situation is that this inclusion cannot change the patent status of the drugs. They will continue to be manufactured by the respective patentees, and unless they decide to lower the prices in India, these drugs will remain unaffordable.

Among other news and announcements breaking on the blog:  

Pankhuri and Prof. Basheer reported that the IPO has issued a public notice seeking feedback from stakeholders on Form 27 filings, or specifically, “on the issues relating to working of Patents i.e. Section 146 of the Patents Act 1970 (as amended) read with Rule 131 of Patent Rules 2003 including Form 27, and penal provisions provided in Section 122…” This feedback is to be submitted by March 16th, 2018 and sent to Dr. W.M. Dhumane at [email protected] and Dr. Usha Rao at [email protected]. Subsequently, selected stakeholders will be invited for a consultation meeting to be held on March 21, 2018. This is noteworthy in the context of our Patent Working PIL, during the course of which, the Delhi High Court asked the Government to submit an affidavit outlining the proposed framework and timeline for enforcing the patent working disclosure mandate and also to consider reviewing/revising the Form 27 format.

Pankhuri announced that The World Trade Institute of the University of Bern, Switzerland and the Centre for WTO Studies, Indian Institute of Foreign Trade, India will be conducting the 5th WTI – CWS Joint Academy on International Trade Law and Policy (“Joint Academy”), from June 4 to June 29, 2018 in New Delhi. The last date for submission of applications is March 30, 2018.

Pankhuri also informed our readers that SpicyIP has been ranked 3rd in a list of top patent blogs of 2018 published by James Yang of OC Patent Lawyer on IPWatchdog earlier last month.

Other Developments

Indian

Judgments

The Coca-Cola Company & Anr. v. Glacier Water Industries Ltd. & Ors. — Delhi High Court [28 February, 2018]

The suit was filed for permanent injunction and related reliefs against the infringement of the plaintiff’s mark, KINLEY. The court had granted an ex parte interim injunction against the defendants. However the defendants did not appear despite service. Therefore the averrments in the plaint and the plaintiff’s evidence went unrebutted, it was deemed to be true. The court decreed the suit accordingly.

M/S.Lyca Productions v. J.Manimaran — Madras High Court [February 22, 2018]
Suit was filed for permanent injunction and related reliefs against the copyright infringement of the plaintiff’s film KARU, for which it had Guild Registration. The Appeal Court in this order, while reviewing an order granting interim injunction found that the lower court’s decision was per incuriam and that the plaintiff has been unable to make out a prima facie case. The Court hence dismissed the appeal.

Ganesh Nadar v. M/S. Bharathi Consumer Care Products Pvt. Ltd.— Madras High Court [February 8, 2018]

This order of the Court gave effect to a memo of compromise arrived at between parties to a suit for permanent injunction and related reliefs against infringement of the plaintiff’s mark, label and trade dress XXX.

M/S Manibhadra Plastic Industries v. M/S Pearl Thrmoplast Pvt. Ltd. –Rajasthan High Court [March 5, 2018]

Suit was filed for permanent injunction and related reliefs against the infringement of the plaintiff’s design of a jug. The defendant claimed that the Court did not have jurisdiction. The Court, relying on Proviso to Section 22(2) of the Designs Act, found that a design infringement suit can be instituted no lower than the District Court, and that ‘any person’ can instituted the suit. The Court further noted that the alleged acts arose in Jodhpur, and hence the Court had territorial jurisdiction to entertain the suit (under Section 20 of the CPC.

M/S N.Ranga Rao & Sons Private Ltd. v. M/S Balarama’s Incense Pvt. Ltd. — Madras High Court [January 25, 2018]

Suit was filed for permanent injunction and related reliefs against the infringement and passing off of the plaintiff’s mark, WOODS in the incense market. The court found that the offending mark was deceptively similar to the plaintiffs, and the product and mode of conducting trade is the same. Moreover, the infringement had been going on for a long period of time. Hence, the Court granted the plaintiff’s prayers and held that he would be entitled to damages and costs of the suit.

Mohammed Mohideen & Ors. v. M/S.New Kalangiyem Tex-Styles — Madras High Court [February 6, 2018]

Suit was filed for permanent injunction and related reliefs against the infringement and passing off of the plaintiff’s mark, KALANJIYAM. The plaintiff was able to establish prior use and registration, and the sole defendant undertook to change the name of his business to RATHI TEXTILES, and hence the suit was decreed accordingly.

M/S.Thalappakatti Hotels Pvt. Ltd. v. Chennai Halal Thalapakattu Biryani — Madras High Court [February 5, 2018]

Suit was filed for permanent injunction and related reliefs against the infringement and passing off of the plaintiff’s mark, THALAPPAKATTI. The plaintiff withdrew the suit.

M/S.Justickets Pvt. Ltd vs Orbgen Technologies Pvt. Ltd. Madras High Court [February 5, 2018]
Suit was filed for permanent injunction and related reliefs against the infringement and passing off of the plaintiff’s mark, TICKETDADA as a domain name, or on any other web form. However, neither of the parties were present in the court on several occasions that it was listed on the board. The Court dismissed the suit.

M/S.Unisept Nourishments v. M/S KTC Ventures — Madras High Court [February 5, 2018]
This order of the Court gave effect to a memo of compromise arrived at between parties to a suit for permanent injunction and related reliefs against infringement of the plaintiff’s mark, label and trade dress LASSI HOUSE.

Venkata Siva Kumar v. Institute Of Cost Accountants Of India & Ors.— Madras High Court [February 20, 2018]

The petitioner approached the Court under Article 226 to delineate the ICAI from the IOCAI, and use the same as trademarks to represent the two institutions. The Court held that this was not the appropriate forum for the relief sought, and directed the petitioner to approach the Court under the Trademarks Act, 1999.

Star India Private Limited v. Department Of Industrial Policy and Promotion & Ors. — Madras High Court [March 2, 2018]

The petitioner challenged a TRAI tariff order on grounds of copyright. The Court however, could not arrive at a unanimous decision, and referred the decision to the third judge. 

Preethi Kitchen Appliances Pvt. Ltd. v. Baghyaa Home Appliances & Anr. — Madras High Court [March 1, 2018]

Suit was filed for permanent injunction and related reliefs against the infringement of a registered design in respect of tripod shaped base unit for mixer grinder and passing off. The Court compared the two products and found similarities between the two designs, and also noted that the defendant was a late entrant in the market and registrant of the design. Hence, it held in favour of the plaintiff. 

Power Soaps Ltd. v. M/S. C M Detergent — Madras High Court [February 20, 2018]
Suit was filed
 for permanent injunction and related reliefs against the infringement of the plaintiff’s marks POWER and DK. However, since the plaintiff stopped using the mark DK, it wished to withdraw the suit, and the Court permitted the same. 

Today Merchandise Private Ltd. v. Www.Indiatodays.Com — Delhi High Court [March 5, 2018]
Suit was filed
 for permanent injunction and related reliefs against the infringement of the plaintiff’s trademark and domain name. The Court opined that the defendants had no real prospect of defending the allegations, and have not even entered appearances despite service. Since the averments and evidence of the plaintiff unrebutted, it was deemed true and correct, and the suit was decreed accordingly. 

Apollo Hospitals Enterprise Ltd v. Sri Sai Apollo Pharmacy — Madras High Court [March 1, 2018]
Suit was filed for permanent injunction and related reliefs against the infringement of the plaintiff’s mark, APOLLO. Based on facts, the Court noted that this was a clear case of infringement, and the defendant’s mark was deceptively similar to the plaintiff’s which could cause confusion in the minds of the consumer. Hence, the Court granted the plaintiff’s prayers. 

M/S.Ultra Tile Pvt. Ltd v. Shri Ganesh Tiles & Granites — Madras High Court [March 1, 2018]
Suit was filed for permanent injunction and related reliefs against the infringement of the plaintiff’s mark, ULTRA in the tiles market. The Court found that the defendant had infringed on the plaintiff’s mark and that the product is same as is the channel of trade. Hence, the Court granted the plaintiff’s prayers. 

M/S.Nexmoo Solutions (India) Pvt. Ltd. v. M/S.Nexmo Inc. — Madras High Court [March 1, 2018]
Suit was filed
 for permanent injunction and related reliefs against the infringement of the plaintiff’s trademark and domain name, NEXMOO. The Court presided over an application for an interim injunction by the plaintiff. The Court found that the test for an injunction was satisfied by the plaintiff, and hence granted the injunction. 

M/S.Classik Cooling Towers v. M/S.Classic Equipments — Madras High Court [February 23, 2018]
Suit was filed
 for permanent injunction and related reliefs against the infringement of the plaintiff’s trademark, CLASSIK COOLING TOWERS. The plaintiff withdrew the suit for want of jurisdiction.

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]

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