SpicyIP Weekly Review (July 22-29)

Thematic Highlight

Prof. Basheer wrote another post on the Novartis AG v. Union of India decision in continuation to his earlier post on a Chinese blockbuster inspired by the Novartis decision. In the first half of his post, he focuses on the Court’s strict construction of the term ‘efficacy’ under Section 3(d) and how Novartis was unable to prove the same in its anti-cancer drug Glivec. He then recounts several flaws in the Court’s reasoning and the decision-making process. He then analyses how the 2005 Amendment to the Patent Act and Section 3(d) brought about a revolution in pioneering innovative patent norms.

Topical Highlight

Rishabh reported an interesting order by the Delhi High Court where the Court had delved into certain psychological theories to reach its decision! In this case the plaintiff (Gillette) had instituted a suit against two defendants, seeking permanent injunction restraining them from adopting the mark ZORRIK TALVAR, which they alleged was deceptively similar since it amounted to a literal translation of the plaintiff’s mark WILKINSON SWORD. The Court relied on Freud’s theory of associative thinking to conclude that the defendant’s use of its trademark resulted in trademark infringement. In his comments on the decision, Rishabh observe that such use of psychological studies in judicial decisions could lead to several complications in the application of legal reasoning and concepts.

Other Posts

Prof. (Dr.) N.S. Gopalakrishnan continues to provide us insightful posts on the plant varieties regime in India. (His earlier posts can be accessed here and here.) In his latest post, he examines the novelty, distinctiveness, uniformity and stability (NDUS) criteria required for registration under the Protection of Plant Varieties and Farmers’ Rights Act and explains how the Authority has not developed any NDUS criteria for registering extant varieties in the Regulations, Guidelines and other notifications issued under the Act, thus introducing arbitrariness in the registration procedure.

Lastly, I wrote about how mediation of IPR disputes is on the rise in India. I first focus on how delays in patent examination and litigation add to the massive pendency of cases in Courts of India. I then reason out how mediation can prove to be a solution to this by citing a recent IPR dispute in the fashion world wrapped quickly through mediation. I also briefly highlight the recent amendment to the Commercial Courts Act which mandates pre-institution mediation and settlement to buttress my conclusion that mediation, in many IPR cases, may prove to be a better solution than litigation.

Other Developments



M/s. Kumudam Publications Private Limited v. A.R. Prabhu and Another – Madras High Court [July 12, 2018]

The Plaintiff filed a case for permanent injunction in order to restrain the Defendants from using the Plaintiff’s mark “KUMUDAM REPORTER”, or any other mark identical or deceptively similar to the Plaintiff’s for the publication of its magazine. The Court decreed the suit on the basis of the Defendant’s undertaking to not use marks or font, colour, design and style of the wrapper similar to that of the Plaintiff.




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