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SpicyIP Fortnightly Review (May 6-19)


We’ve had quite an eventful fortnight at the blog:

Thematic Highlight

This fortnight’s thematic highlight was a guest post by our fellowship applicant, Prarthana Patnaik. Taking apart a recent US District Court judgment that held the “embedding” of tweets as copyright infringement, Prarthana discusses the implications of the decision. In doing so, she critically analyses the Court’s understanding and application of the “Server Test” – which is the landmark judicial test employed in deciding issues of copyright infringement of electronic information.

Topical Highlight

Prashant brought us this fortnight’s topical highlights, with his posts on the recent developments in the Monsanto – Naziveedu dispute:

  • Prashant first reported that the appeal arising from the Division Bench order, was admitted by the SC last week, and has been slated for a hearing in July. He notes that as things stand at present, the Delhi HC Division Bench judgment has not been stayed by the SC and Monsanto is disputing the DB’s assumption that they had waived their right to trial. Against this background, Prashant observes that the SC will have the opportunity to discuss several issues central to patent law, in July. These primarily include hitherto unexplored aspects of patent claim construction.
  • Prashant then attempted to analyse the true nature of Monsanto’s invention, ahead of the SC hearing. He traces the development of the PPVFR legislation in India, and draws our attention to the present conflict in the Monsanto litigation: whether the Monsanto invention is protectable as a patent or as a “plant variety” under the PPVFR Act. He observes that this question, along with all aspects that it entails, boils down to the issue of claim construction.

Other Posts

Kick starting the fortnight, was a guest post by our fellowship applicant Kashish Makkar. In his post, Kashish argues that the John Doe jurisprudence in India was adopted in flagrant disregard for the rule of law. As such, he observes that an alternative statutory remedy exists under the Code of Civil Procedure, 1908 – particularly ‘representative suits’ as stipulated under Order 1, Rule 8 of the Code. Finally, Kashish argues that ‘John Doe’ orders can potentially be held ultra vires the Code on the grounds that they are not sustainable u/s 151 of the Code.

Next, Pankhuri wrote about India’s inclusion on the ‘Priority Watch List’ of the USTR’s annual ‘Special 301 Report on IPRs’. Noting the USTR’s concerns regarding India’s IP practices, Pankhuri observes that the report surprisingly does not expressly take issue with India’s local patent disclosure requirements. These disclosure requirements, stipulated under Form 27 of the Act, have been the centre of much debate and discussion off late – with the Indian government receiving suggestions and comments to modify Form 27 from various stakeholders – including the US government. Pankhuri concludes by drawing our attention to articles by Vidya Krishnan and Latha Jishnu that discuss suggested modifications to Form 27 procedures within the larger context of US pressure to modify Indian patent laws.

Prashant reported on the recent dispute faced by Baba Ramdev’s Patanjali with regard to its revenue sharing obligations under the Biological Diversity Act. After tracing the development of the Biodiversity legislation both internationally and nationally, Prashant throws light on the Act’s provisions. Under the act, companies are required to first obtain permission of the state biodiversity boards for accessing the resources, and then share royalties with the boards, for any “commercial utilization” of the resources. Prashant observes that despite these provisions, the biodiversity act differentiates between “indian companies” and “foreign ones” – absolving the former of several obligations under the Act. Thus, to prove the former, would be Patanjali’s ideal approach to the issue.

Finally, we had a guest post by another fellowship applicant, Poornima Ramesh. Poornima discusses a rather interesting aspect of patent law: patents for inventions made and used in outer space. She takes us through the current international legal regime governing space law – particularly inventions made in space. Against this backdrop, she attempts to unravel answers to two primary dilemmas: ownership and related issues concerning patents for inventions made in space, and possible remedies for patent infringements in outer space.

Events & Announcements

Pankhuri announced that the EIPIN (European IP Institutes Network Innovation Society is inviting applications for Marie Skłodowska-Curie Individual Fellowship. The deadline for submitting research proposals is September 12, 2018.

Other Developments

Indian

Judgments

Somashekar P. Patil v. DVG Patil  – Karnataka High Court [May 8, 2018]

The dispute concerned Respondent’s use of the trademark “PATIL FRAGRANCES” in committing infringement and passing off of the Appellant’s trademark “PATIL AND PATIL PARIMALA WORKS” for the sale of incense sticks. The Court concurred with the order passed by the Trial Court in vacating the temporary injunction granted to the Appellant, thereby allowing the Respondent to use its trademark on the ground of a bona fide use of the word “PATIL”, as he hailed from the Appellant’s family and also on the basis that the products and brands of both the parties were different.

M/S Hindustan Media Ltd. v. Mr. Faisal Masood & Ors. – Delhi High Court [May 4, 2018]

The court granted an ex-parte permanent injunction restraining the defendant from using the domain name ‘hindustantimes.in’, the trademark ‘Hindustan Times’ and the logo depicting the words ‘Hindustan Times’. The court opines that the defendants had no real prospect of defending their claim as they did not enter an appearance, file a written statement or deny the documents of the plaintiff. Plaintiff is the owner of the registered trademark Hindustan Times and HT and the prior user of the mark and the domain name. Hence, the suit was decreed in favour of the plaintiff and against the defendant.

Sandisk LLC & Anr. v. Devaram Choudhary & Anr.- Delhi High Court [May 7, 2018]

The court granted an ex-parte permanent injunction restraining the defendants from infringing the plaintiff’s trade mark ‘SANDISK’, trade dress, copyright and passing off its goods as that of the plaintiff. The defendants did not make any attempt to defend their claim. Defendants did not file any written statement despite entering an appearance and did not deny the plaintiff’s documents. The court was of the view that the defendants were trying to unfairly benefit from the reputation and goodwill of the plaintiffs by selling counterfeit products using plaintiff’s trademark and its product packaging.

Shuddhananda Yoga Samaj v. Rajeswari Book Shop & Anr.- Madurai Bench of the Madras High Court [April 24, 2018]

The court dismissed the appeal praying for a permanent injunction restraining the defendants from publishing the literary works of author Yogi Shuddhananda Bharathi without the permission of the plaintiff society, the legatee of the copyright in all literary works of the author under a will dated 14.10.1981.The dispute with respect to  defendant no. 2concerned the alleged infringement of copyright in one of the literary works of the author, a book titled ‘Maha Kavi Dhante’. The defendant no. 2 claimed that the book with the same title had been published by another publisher way back in 1940 and the book clearly mentioned that the author had assigned the copyright in the book to that publisher. In view of these facts, the court noted that the author himself did not have copyright in the book at the time of the execution of the will as he had already assigned it to a publisher at that time and thus, could not have bequeathed the copyright in the book to the plaintiff society.

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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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