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SpicyIP Weekly Review (October 22-28)


Stay updated with our recap of this week’s posts!

Thematic Highlight 

Prashant provided his latest report on the burgeoning Bedaquiline controversy. In his previous posts, he had commented on The Hindu’s lack of reportage on the harmful effects of this drug. In this post though, he reports that a Hindu correspondent visited the patients who were being given this drug and it was discovered that the patients were neither informed about the deaths in the Phase 2B trials nor were they asked to sign the informed consent form.

Topical Highlight

Divij wrote about how Indian IPR administrative offices are opening up to new technologies in their practice. He first reports that the Indian Copyright Office has put out a public notice introducing video conferencing as an optional mode of hearing applications for copyright registrations. He then reports that the Controller General of Patents, Designs and Trademarks recently released an invitation for Expression of Interest for companies or agencies utilising AI, blockchain, ‘internet of things’ and other such technologies to describe methods for their usage in addressing IP issues.

Other Posts

I had written a post on a complaint filed before the BCI and the Controller General of Patents, Designs and Trademarks about foreign IP law firms allegedly being allowed to file vakalatnamas. Giving a brief recap of past rulings of the judiciary on the issue of foreign law firms practising in India and also the latest SC ruling on the same, I note that, such allegations, if found true, would amount to overlooking the SC instructions. I conclude by highlighting the need for proper investigation and redressal of these allegations.

Prof. N. S. Gopalakrishnan provided us yet another incisive take on the Indian Plant Varieties Act. In his latest post, he describes the hurdles in the implementation of Farmers’ Rights to register new and existing plant varieties. He concludes that the formal IP rights proffered to farmers for such registration have proven to be ineffective for promotion of traditional breeding practices and require revision.

SpicyIP Events

Pankhuri announced that the International Trademark Association is organizing its second Asia-Pacific Moot Court Competition. The competition is scheduled to take place in Singapore on March 1 & 2, 2019 and the deadline for registration is November 2, 2018.

Other Developments

Indian

Judgments

M/s Dia Health Foods Pvt. Ltd. v. M/s Diabliss Consumer Products – Madras High Court [September 06, 2018]

Plaintiff-respondents are the manufacturers and distributors of food products such as Diabliss Sugar, Diabliss Herbal Lemon Tea, and are owners of the artistic design for the pouch ‘Diabliss Diabetic Friendly Sugar’. D1 is the plaintiff’s distributor of products. D2 filed a complaint to the Indian Trade Promotion Organization requesting the plaintiff’s to desist from displaying their products with an artistic design similar to that of D2. Plaintiffs allege the infringement of their copyright by D2, who started using the design only from October 2017 while the plaintiffs started using their design from May 2015. Defendant-appellants were found to have registered the trademark for the pouch, and the plaintiff would not be barred from claiming copyright protection. Further, designs belonging to D1 were found to be very similar to that of the plaintiff, and were found to be taking advantage as being the plaintiff’s distributor as per orders of the Single Judge. The High Court, on perusing evidence [the distributorship agreement specifically provided that D1 acknowledges the plaintiff-respondent to retain all TM, Copyright and proprietary rights] found the defendant-appellants not be acting bona fide. The appeal was thus dismissed.

Bharati Consumer Care Products v. Ganesh Industries – Madras High Court [September 18, 2018]

Plaintiff’s are the registered trademark owners of XXX, and copyright owners of the artistic design XXX LABEL with a red, white and yellow colour scheme with metallic blue background. Defendants own the trademark MAXX to manufacture and distribute detergent powder, detergent cake, and washing powder. Plaintiffs sought a permanent injunction restraining the defendants from infringing and passing off the latter’s products as that of the plaintiff. Both parties have agreed to settle amicably and enter into a Memorandum of Compromise, and a compromise decree in accordance with the MoC terms shall be passed.

Tablets (India) Ltd. v. D.R. Johns Lab Pharma Pvt. Ltd. – Madras High Court [September 26, 2018]

The issue in this ex-parte order was a case of infringement and passing off trademarks pending registration. Plaintiffs are the owners of three medicinal and pharmaceutical preparations Streptococcus faecalis T-110 [T1], Clostridium butyricum TO-A [T2] and Bacillius mesentericus TO-A [T3]. T1 is registered while T2 and T3 are yet to be registered. The defendants were found to manufacture, use and market the aforementioned bacteria strains in their products, and thus arose a case for infringement and passing off the trademarked bacteria strains. Being generic pharmaceutical names, all the marks were found to be deposited with the International Depository Authority pursuant to the Budapest Treaty by the plaintiff. Communications between both parties revealed that the defendants recalled all stock of the infringing medicinal products. The plaintiffs prayer to grant a permanent injunction restraining the defendants from infringing and passing off their products as that off the plaintiffs along with liquidated damages was decreed in part.

Mr. A.D. Padmasingh Issac v. M/s Sri Aachi Appalam – Madras High Court [September 26, 2018]

In this summary judgment, the Court granted a partial permanent injunction restraining the defendants [owner of registered trademark AACHI/AACHI APPALAMS/SRI AACHI APPALAMS] from passing off and infringing the plaintiff’s registered trademark AACHI and AACHI APPALAMS with respect to appalams/masala items and using the same pouches/packets. Spices are mentioned under Class 30, while masala powder and appalams are not specifically enumerated under Class 30 and the plaintiff submitted that masala powder and appalam can fall within the existing heads under Class 30. In deciding whether or not the TM Office can issue registration certificates for goods specifically not  o enumerated in any of the Classes, the Court left the question open and unanswered. Note: The Court specifically held that this judgment is not to be treated as precedent on the question of whether or not the TM Office can grant registration for products not specifically enumerated in any of the 45 classes.

M/s Vini Cosmetics Pvt. Ltd. v. M/s Abhay Enterprises & Ors – Delhi High Court [October 01, 2018]

Plaintiffs have applied for the registration of a word and label mark of their product GLAM UP LABEL which is a cream powder in red colour packaging. The defendant was found to be using an identical mark and carton, and was importing the same. The Customs Officer, Mumbai sent a notification regarding one such consignment to one of the plaintiff’s manufacturers. The Court found the plaintiff’s rights to be violated from a simple perusal of the carton and packaging products. The defendant has undertaken not to manufacture, sale or import these infringing products, and has been ordered to pay 20% of the total import consignment value along with damages to the plaintiff.

Montblanc-Simplo Gmbh v. M/S Bajaj Belts – Delhi High Court [October 11, 2018]

The plaintiffs filed a suit seeking a permanent injunction restraining the defendants from infringing their trademarks or passing off any good/service of the defendant as that of the plaintiff and compensatory costs on account of loss of sales, reputation and goodwill. The court examined the reports by the Appointed Commissioners and found that the defendants’ plea of being first-time infringers had no merit in light of the volume of the infringing goods seized and held that the defendants were seasoned infringers and counterfeiters. Accordingly, the court disposed of the suit, granting a permanent injunction according to the prayer of the plaintiff and awarding costs to the extent of actual costs and litigation cost.

Sun Pharmaceutical Industries Ltd v. Infocom Network Limited – Delhi High Court [October 12, 2018]

The plaintiffs filed a suit seeking a permanent injunction restraining the defendants from infringing their trademarks or passing off the goods and business of the defendants as that of the plaintiff and sought an order for costs. The court examined the reports by the Appointed Commissioners and found that the defendants’ trade names like “SUN PHARMA AGENCY”, “JBK SUN PHARMA”, “SUN PHARMA WORLD” and domain names like “www.godsun.in”, “www.sunpharmachem.com” and “www.raisingsunpharma.com”, were deceptively similar to that of the plaintiff’s and did infringe the plaintiff’s trademarks. Accordingly, the court disposed of the suit, granting a permanent injunction according to the prayer of the plaintiff, directed the defendants to cancel the domains and awarding costs to the extent of actual costs.

M/s. Super Cassettes Industries v. M/s Ram Cable Network &  M/s. Super Cassettes Industries v. M/s Raghunathpur Cable Network   – Delhi District Court [October 20, 2018]

In both cases, the court granted an ex-parte permanent injunction restraining the defendant, a cable operator, from infringing the copyright of the plaintiff, the owner of the ‘T-Series’ label, by broadcasting cinematographic films and musical works owned by it, over the cable. It further directed the defendant to hand over all the infringing material to the plaintiff and pay punitive damages of Rs. 20 lakhs to the plaintiff.

News

International

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