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SpicyIP Weekly Review (April 8 -14)


In case you missed this week’s posts, don’t worry, here’s a roundup below –

The topical highlight of the week is Prashant’s post on the long running dispute regarding the patentability of Monsanto’s BT Cotton. In a significant ruling, the Delhi High Court denied Monsanto patent protection for its claim over a particular genetic sequence. The HC rejected the claim on the grounds that it was not patentable subject matter under Section 3(j), which prohibits the grant of patents for plants, plant varieties or seeds or any part thereof. Prashant notes several issues with the court’s judgement – starting from the Court’s construction of Monsanto’s claim, as well as its characterization of the process of transfer of genomes as an ‘essentially biological process’ under Section 3(j). The dispute will possibly go the Supreme Court, so stay tuned for more updates!

 

The thematic highlight of the week was Pankhuri’s post covering Justice Prabha Sridevan and Prof. Srividya Raghavan’s article on the importance of the Patent Working requirement under the Indian Patents Act, noting that the patent working requirement is TRIPS compliant and the principle that patent protection rests on its ability to foster and promote scientific innovation.

Sreyoshi wrote a post on a division bench of the Delhi High Court’s decision in Epsilon Publishing House v. UOI & Ors. The dispute related to a factual situation where the appellant was unable to comply with procedural requirements for trademark renewal, due to the fault of the registry. The Court held that the application to renew cannot be affected by the failure of the registry.

We also had a post from fellowship applicant Rishabh Mohnot, who wrote of the Geographical Registry’s order rejecting Madhya Pradesh’s claim over the GI tag for Basmati Rice. Rishabh notes that the Basmati claim may not meet the high threshold for ‘essential connection’ with the geographical region required under the GI Act, and that the rejection was possibly merited. A writ petition against this order has now been filed in the MP High Court.

Finally, I wrote about the Supreme Court of India’s decision in BN Firos v State of Kerala, where the Supreme Court was hearing an appeal regarding the interpretation between two seemingly conflicting provisions of law – the restriction of authorisation from a software under the IT Act and the copyright owners rights over a software under the Copyright Act. The Court’s manner of reconciliation was to hold that the power of the State to restrict authorisation under the IT Act was circumscribed by the Copyright Act.

Other Developments

India

Judgements

Superon Schweisstechnik India Ltd. v. Modi Hitech India Ltd. — Delhi High Court [April 2, 2018]
Suit was filed for permanent injunction and related reliefs against the infringement and passing off of the plaintiff’s mark VAC-PAC and SUPERON. The court found that a claim of passing off or infringement could not be entertained, as there was no deceptive similarity between the two products, and the defendant used a different trade dress and mark to identify his product. Further, the plaintiff’s argument that the defendant used the word VAC-PAC and therefore infringed the plaintiff’s mark is baseless because it is a descriptive mark which cannot be protected under trademark law.

Super Cassettes Industries Pvt. Ltd. v. Good Media News Pvt. Ltd. — Delhi High Court [April 2, 2018]
Suit was filed for permanent injunction and related reliefs against the copyright infringement of certain films, music and lyrics, against a cable company. The defendant did not appear despite service. The Court found, based on the evidence adduced, that the plaintiff had made out a case of infringement and since the defendant did not appear, the same was deemed to be true and correct. The suit was decreed in favour of the plaintiff.

Mr.A.D.Padmasingh Isaac v. Aachi Mess — Madras High Court [March 14, 2018]
Suit was filed for permanent injunction and related reliefs against infringement of the plaintiff’s marks AACHI/AACHI CHETTINAD RESTAURANT/AACHI KITCHEN. The defendant did not appear despite service. The Court found, based on the evidence adduced, that the plaintiff had made out a case of infringement and since the defendant did not appear, the same was deemed to be true and correct. The suit was decreed in favour of the plaintiff.

Samsung Electronics Company Ltd. & Anr. v. A. Shajahantrading AS – Delhi High Court [April 10, 2018]

The Court granted an ex-parte permanent injunction restraining the Defendant from manufacturing, selling or trading in the well-known and registered marks of the Plaintiff, which include “SAMSUNG”, its derivatives and any marks deceptively or confusingly similar to it. The costs of the suit were also awarded to the Plaintiff

Jaideep Mohan v. Hub International Industries & Anr. — Delhi High Court [April 5, 2018]
Suit was filed for permanent injunction and related reliefs against infringement of the plaintiff’s mark BLACKSMITH in the alcoholic beverages market. The defendant was using the mark GOLDSMITH with respect to the same product. Dismissing the suit the Court found that there is no scope of deceptive similarity between the two marks which is likely to cause confusion in the minds of the consumers and the plaintiff had made no case for infringement.

Delhi Public School Society v. DPS World Foundation & Anr. — Delhi High Court [April 5, 2018]
This order dealt with an appeal against a lower court order restraining the defendants from using the trademark/name DPS. The Court found that based on principle of hierarchy of benches, the order cannot be disturbed, and dismissed the appeal.

Maya Sharma v. Unique Law Publication House & Ors. — Delhi High Court [April , 2018]
Suit was filed for permanent injunction and related reliefs against infringement of the plaintiff’s mark, UNIQUE and UNIQUE20. Previously, an ex parte interim order was passed against the defendant, and the matter was referred to mediation as well, but with no avail. The Court found, based on the evidence adduced, that the plaintiff had made out a case of infringement and since the defendant did not appear, the same was deemed to be true and correct. The suit was decreed in favour of the plaintiff.

News

  1. Amazon hits roadblock in the Indian trademark office
  2. Marathi film ‘Nude’s’ release stayed by Delhi court over plagiarism charges
  3. Request for withdrawal of post-grant opposition not allowed
  4. EU-India FTA: MSF raises concerns about IP provisions’ effect on generic medicines

International

  1. Swedish Patents and Market Court of Appeal says that an ISP may not be required to hand over information about subscribers’ IP addresses
  2. Oracle and Google Dispute Over the Use of API’s is Not Over Yet

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