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SpicyIP Weekly Review (September 3-9)


Thematic Highlight 

In Prashant’s latest update on the bedaquiline  controversy, he discusses about how The Hindu’s science editor pitched for increasing access to bedaquiline to treat MDR-TB. In response to this, he reiterates his argument in earlier posts: Since Phase III trials for the drug has not been conducted yet, regulatory approval for the same should not be given. In the latter part of his post, he points out that journalists have not addressed the government’s scandalous consent forms for providing access to bedaquiline. These forms, apart from providing insufficient  information about the adverse effects of bedaquiline, force patients to forgo compensation for death or injury due tot he drug.

Topical Highlight

Divij covered a recent Bombay HC judgment where the Court imposed costs on the defendant for a whopping amount of Rs 1.5 crores! In his post, he notes that this may possibly be the largest order of exemplary costs in a TM infringement case. On finding the defendant guilty of committing habitual trademark infringement of pharmaceutical products, the Court noted various public heath concerns arising due to such trademark malpractice.

Other Posts

Rishabh wrote about a Madras HC decision where Texmo Industries had argued that there TM, TEXMO, be declared a well-known mark under Section 11 of the Trademark Act. In his analysis of the Court’s decision, he notes the ambiguity surrounding the issue of whether the Registrar or the Courts have the power to declare trademarks well-known.

Rajiv posted about the grant of patent to Agmen for Brodalumab, a drug designed for treatment of inflammatory diseases. On perusal of the controller’s decision granting the patent, he notes that the order included the reason why the patent was granted and the various objections to the patent grant were not removed.

Lastly, I wrote a piece on how the concept of obscenity is dealt with under different branches of Indian IP law i.e., copyright, patent and trademark law. Analysing the treatment of the same under these branches, I note that there is either lacunae in the law or there is ambiguity in the application of the existing provisions which allows institutional authorities to provide their own skewed opinions on morality. I conclude my post by stating that there is a need to address these gaps in law to prevent such imposition of arbitrary moral standards.

SpicyIP Events

Pankhuri announced that the Inter University Centre for IPR Studies, Cochin University of Science and Technology (CUSAT) is organising the sixth annual ‘Rethinking Intellectual Property Rights’ workshop on the theme ‘Intellectual Property Rights and Competition: A Social Perspective’. The programme is to be held from January 18-20, 2019.

In a separate announcement, Pankhuri informed us about the First IP & Innovation Researchers of Asia Conference, which will be held on 31 January – 1 February 2019 at the Ahmad Ibrahim Kulliyyah of Laws, International Islamic University Malaysia, in Kuala Lumpur, Malaysia. The deadline for submitting an abstract for the same is 15 October 2018.

Other Developments

Indian

Judgments

M/s. Nandhini Deluxe v. M/s. Nandhini Gardens – Bangalore District Court [August 31, 2018]

The Court granted an ex parte decree of permanent injunction restraining the Defendant from infringing and passing off the Plaintiff’s registered trademarks “NADHINI DELUXE” and “NANDHINI” by using a deceptively similar mark “NANDHINI GARDENS” in respect of carrying on the restaurant business. In arriving at the decision, the Court noted that the mark adopted by the Defendant was structurally, phonetically and visually similar to the Plaintiff’s trademark, and the Parties were engaged in the same business, thereby creating a higher likelihood of confusion among the costumers. Ultimately, the Court concluded that the Defendant had blatantly adopted the impugned mark in order to ride on the reputation and goodwill of the Plaintiff to make a profit.


Burger King Corporation v. Techchand Shewakramani
 – Delhi High Court [August 27, 2018]

The dispute concerned the alleged infringement and passing off of the Plaintiff’s registered marks “BURGER KING” and “HUNGRY JACK’S” by the Defendant. The Defendant thereafter filed an application seeking rejection of the plaint on the ground of lack of cause of action and lack of territorial jurisdiction of the Delhi High Court as the Defendant’s business was entirely carried on in Mumbai. The Court rejected the Defendant’s application stating that the Plaintiff could make out a cause of action within the territorial jurisdiction of the Court as the Defendant had promoted the impugned mark in Delhi, entertained franchisee queries from Delhi, sought franchise requests through its website “theburgerking.in” and openly and publicly expressed their intention to expand their business across India.

Samsung Electronics Company v. Mr. Akhilesh Tiwari – Delhi High Court [August 28, 2018]

The Court granted an ex parte decree of permanent injunction restraining the Defendant from infringing and passing off the Plaintiff’s registered trademarks “SAMSUNG” and “GALAXY” by using identical marks in respect of mobile phones and accessories. The Court stated that the Plaintiffs were the registered proprietors of the marks in question and that the Defendant had no real prospect of defending their claim as they had not appeared before the Court to argue their case. Moreover, the Defendant were directed to destroy the counterfeiting goods seized by the Local Commissioners.

Texmo Industries v. Mr. Roshan Kumar – Madras High Court [August 27, 2018]

The Court granted a decree of permanent injunction restraining the Defendant from infringing and passing off the Plaintiff’s registered trademark “TEXMO” by using a deceptively similar mark “TEXMEN” in respect of water pumps to be used in the agricultural sector. In arriving at the decision, the Court stated that the Plaintiff are registered proprietor of the mark and have been using the same since a long period of time. It was also noted that the Parties served the same class of consumers and thus, there could be a likelihood of confusion. Moreover, the Plaintiff through its prayer had requested the Court to declare its mark as well-known. However, the Court was of the opinion that the factors to be considered to declare a mark well-known could be effectively determined only by the Registrar of Trade Marks and not the Court, and in holding this referred the question to a Division Bench to be constituted by the Chief Justice of the Court.

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