In another post in the ongoing series on the plant variety regime in India, Prof. N.S. Gopalakrishnan discusses farmers’ varieties in the Indian regime. He notes that there are discrepancies in the individual or people that can apply for registration of a farmer’s variety under the legislation. He further notes that the legislation does not provide clear guidance for the identification of farmers’ varieties.
Prof. Basheer and Pankhuri wrote a follow-up post on a recent decision of the patent office on the morality of a device meant for sexual pleasure. In this post, the authors point out that the applicant had placed their objections to the issues raised by the Patent Office concerning morality on record, dispelling speculation that the decision was passed without opposition from the applicants. They further note that, even in the absence of a reply, the Patent Office must pass decisions with deference to the rule of law.
Rahul critiqued a recent judgment on the copyrightability of a concept note. In this case, a show which envisaged a quiz show format in which home-viewers could participate for prize money was examined. Rahul notes that while the court upheld the long-standing principle that concepts cannot be copyrighted, it erred by applying the ‘novelty’ standard in patent law. He further argues that the appellant had a strong confidentiality claim, which the court ostensibly overlooked.
Pankhuri brought to us a two-part guest post by Adarsh Ramanujan on the WTO Panel ruling in the Plain Packaging Dispute. In Part-I, Adarsh highlights the short-comings of the Panel Report with respect to certain trademark issues. He argues that the Panel found incorrectly on aspects concerning the potentially registrable non-distinctive marks, cancellation of registered but inherently non-distinctive signs and maintenance and acquisition of well-known mark status.
In Part-II, Adarsh highlights potent arguments that the complainants in the case failed to raise effectively. Specifically, he argues that the contention pertaining to Article 16.1 of TRIPs was misplaced in the present fact scenario. He posits, rather, that the Panel should have focussed on whether a registered non-word sign could be infringed by use of an identical or similar sign in “similar” goods not covered by the TPP measures to reach a decision.
Divij wrote a tidbit on the Madras HC’s recent decision in M/s. Sathya Movies vs M/s.Suresh Production Entertainment Private Limited, where it upheld the copyright in the title of the film ‘Naan Aanaiittaal’ in an ex-parte hearing.
Pankhuri informed us about a job opening at Médecins Sans Frontières Access Campaign for the position of a Trade and Intellectual Property Analyst. The position is based out of New Delhi and the deadline for applications is August 19, 2018.
1. Radico Khaitan Ltd. v. Shanty Raina & Ors. – Delhi High Court [August 13, 2018]
The Court granted an ex parte permanent injunction restraining the Defendants from infringing and passing off the Plaintiff’s registered mark and label “NJAU” by using an identical mark in respect of liquor. In arriving at this decision, the Court examined the evidence submitted by the Plaintiff and concluded that the Defendants were using the Plaintiff’s mark and its product in order to sell counterfeit goods with a view to benefit from its reputation and goodwill. The Court also stated that though the Defendant was exporting the counterfeit goods to Nigeria and not operating in India, the mere application of the Plaintiff’s mark in India constituted use of the mark in India. Moreover, the Court awarded damages of Rupees 9,86,580 after calculating the number of cartons manufactured and exported by the Defendants.
2. A & A Dukaan Financial Services Private Ltd. v. Mr. Abhishek Kohli & Ors. – Delhi High Court [August 13, 2018]
The Court granted an ex parte permanent injunction restraining the Defendants from infringing and passing off the Plaintiff’s registered marks “bankbazaar” and “bankbazaar.com”, along with its domain name “www.bankbazaarloan.com” by using a deceptively similar mark “bankbazaarloan.com” in respect of online technology for aggregation, display and comparison of financial products. In arriving at this decision, the Court observed that the Defendants had no real prospect to defend its claim as the mark was registered in favour of the Plaintiff and, they had failed to appear or file a written statement. Moreover, the Court decreed the transfer of the domain name www.bankbazaarloan.com to the Plaintiff.
3. Nahar Singh Mahipal Jain v. Shri Vineet Jain – Delhi District Court [August 14, 2018]
The dispute concerned the alleged infringement of the Plaintiff’s associated mark “CLASSIC GOLD” in respect of edible and non-edible colours and chemicals by using a deceptively similar mark “NEW CLASSIC GOLD” in respect of selling drinking chocolate and allied goods. The Court dismissed the case stating that the Plaintiff had failed to disclose the fact relating to the registration of its mark by the previous partnership firm and in the absence of any assignment from the previous firm, there could be no right in favour of the Plaintiff to use the mark.