Others

SpicyIP Weekly Review (August 27-September 2)


Thematic Highlight

In her guest post, Dr. Sunanda Bharti argues that Hall of Nations the Hall of Nations structure is a work of architecture, and therefore, qualifies for protection under the Copyright Act, 1957. She posits that even though the economic rights with respect to the structure vest with the Government, moral rights under Section 57 still remain with the artist who created the work. The destruction, therefore, violated these rights.

Topical Highlight

Prashant wrote about the most recent attempt of ‘access to medicine’ activists to ensure the accessibility of bedaquiline. According to the latest set of guidelines from WHO, the activists demand that the drug be made accessible to all patients of multi-drug resistant TB patients in India. He notes the dangers of not following through with Phase III trials, and also points out certain issues with the informed consent form for patients in order to use bedaquiline.

Other Posts

In his post on the 2012 amendments to the Copyright Act, 1957, Prashant wrote about the developments in the realm of licensing music from copyright societies. He notes that a perusal of the financial statements of societies such as the IPRS or ISRA reveals that the income has not increased as much as one would hope. He further notes that the litigation expenses of these societies are enormous, and questions the relevance of these societies in the new age.

In his guest post, Subhajeet Roy argues that holders of standard-essential patents should not be given the right to seek injunctive relief. He posits, first, that seeking injunctive relief would violate the commitments made on FRAND terms. He further notes that relying on injunctive relief would constitute an abuse of the dominant position of a SEP holder, and would, therefore, violate anti-trust laws.

SpicyIP Events

Pankhuri informed us about the First Galgotias University National Moot Court Competition (GUNMCC), to be held from September 28-29, 2018 at the University in Greater Noida, Uttar Pradesh.

Other Developments

Indian

Judgments

M/s. Ozone Overseas Private Limited v. Mr. Tajinder Kumar Chawla – Delhi District Court [August 23, 2018]

The Court granted an interim injunction restraining the Defendant from infringing and passing off the Plaintiff’s registered trademark and copyright “OZONE”, and domain name “www.ozone-india.com” by using a deceptively similar marks “OXZONE” and “OXONE” in respect of doors and window fittings, door closers, door stoppers, hinges and other allied and cognate goods. In arriving at this decision, the Court stated that the Defendant knowingly adopted the mark and used similar style and font for the phrase “ZONE” as that of the Plaintiff in order to dishonestly take advantage of the Plaintiff’s goodwill and reputation. Moreover, the Court noted that the products sold under the impugned marks were purchased and utilized by carpenters and persons of average intelligence, whereby there existed a higher likelihood of deception.

M/s. STP Limited v. M/s. Shalimar Seal & Tar Products Private Limited – Delhi District Court [August 21, 2018]

The Court partly granted a decree permanent injunction restraining the Defendant from infringing and passing off the Plaintiff’s registered trademark with the prefix “SHALI” namely, “SHALI PLAST”, “SHALI POXY”, “SHALI GROUT” and “SHALI CURE” by using a deceptively similar marks “SHALIPLAS” and “SHALIMAR EPOXY” in respect of identical goods like waterproofing products, corrosions protection products and other allied and cognate goods. The Court stated that the Plaintiff was the registered proprietor of the marks containing the “SHALI” prefix and the prefix is not a generic word, meaning thereby that it has to be granted highest degree of protection. However, the Court did not grant the Plaintiff’s claim of permanent injunction for its mark “SHALIMAR” on the ground that Plaintiff had acquiesced the use of the identical mark in favour of the Defendant for 19 years. With respect to damages, the Court ordered the Defendant to pay 12.5 lakhs in the form of punitive damages.

M/s. Aashiana Rolling Mills Limited v. M/s. Kamdhenu Limited – Delhi High Court [August 23, 2018]

The dispute concerned the alleged infringement of the Respondent’s registered design and mark “FRIENDS 500 HD” in the sale of steel bars by the Appellant. The Court set aside the interim injunction granted by the Single Judge stating that the design registered by the Respondent was neither unique nor novel as it had been in the public domain since 1984. The Respondent was also rebuked for not having disclosed to the Court that the design used by it confirmed to a widespread international standard for rods/ bars. Ultimately, the Court was of the opinion that the observations with respect to the existence of prima facie case for the grant of an interim injunction could not be upheld.

Vinod Kumar v. State of Rajasthan – Rajasthan High Court [August 21, 2018]

The Petitioner’s counsel has contended that correct procedure was not followed in a raid by the police and that the provisions of the Copyright Act, 1957 were not attracted to the case. The Court stayed the proceedings arising out of the FIR without giving any particular reason and issued notice for appearance to the Respondents.

Burberry Limited v. Mohammad Azeem – Delhi District Court [August 27, 2018]

The Court granted an ex parte permanent injunction restraining the Defendant from infringing and passing off the Plaintiff’s registered trademarks “BURBERRY”, “BURBERRY EQUESTRIAN KNIGHT” logo, “CHECK” device, and various “BURBERRY” formative trademarks in relation to its goods and business, by using identical marks as the ones aforementioned in respect of readymade garments, clothing, apparels and other allied and cognate goods. In arriving at the decision, the Court noted that the Plaintiff was the registered proprietor of its marks and the impugned marks adopted by the Defendant were structurally, visually and phonetically similar to those of the Plaintiff, thereby causing not only confusion among the public but also the loss of reputation and goodwill to the Plaintiff. Additionally, the Court awarded punitive damages of Rupees 2 lakh in favour of the Plaintiff due to the loss caused to their goodwill and reputation.

Marico Limited v. Mukesh Kumar & Others – Delhi High Court [August 27, 2018]

The Court granted a permanent injunction restraining the Defendant from infringing and passing off the Plaintiff’s registered trademarks “PARACHUTE”, “FLAG DEVICE”, “BROKEN COCUNUT DEVICE”, and bottle shapes of “PARACHUTE BOTTLE”, “PARACHUTE JAR” and “PARACHUTE ADVANSED JASMINE”, by using deceptively similar marks, trade dress, packaging and bottle shapes, namely “EVEREST COCUNUT OIL” and “EVEREST JASMINE HAIR OIL” in respect of hair oil. The Court noted that a prima facie case of infringement was made out in favour of the Plaintiff as the Defendant had copied not only the bottle shape, colour and labelling but also the individual elements capable of independent registration. The Court rejected the defence of acquiescence taken up by the Defendant, stating that the act of acquiescence is not merely limited to Plaintiff’s inaction for infringement of its rights, but should necessarily involve a positive act on its part which encourages such infringement. Ultimately, the Court summed up the matter in light of all the matter before it, stating that the Defendant’s trading was neither honest nor fair as it attempted to take unfair advantage of Plaintiff’s reputation and goodwill.

News
Fabindia agrees to not use ‘Khadi’ for their products

Delhi’s Sardarbuksh Coffee Shop In Trouble, Starbucks Files A Case

International

YouTube download sites are biggest piracy threat to music industry

The Music Industry Has a New Tactic to Fight Google: #LoveMusic

European For Creators campaign fight for safe harbour reform

Walmart’s Latest Blockchain Patent Lets Robots Conduct Deliveries

 

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Rishabh Mohnot

Rishabh is a fourth year law student at the National University of Juridical Sciences, Kolkata. He is currently the Director of the Intellectual Property and Technology Law Society at his University and a Senior Associate Member of the NUJS Law Review. He is happy to correspond by email at [email protected]

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