SpicyIP Weekly Review (October 29-November 4)

Thematic Highlight

In his latest post on the issue, Rajiv discusses the impact of a recent UK case on Standard-Essential Patent (SEP) litigation. He provides excerpts portions of the judgment that encapsulate the judgment and brief and confines his analysis to the issues of global portfolio licensing and valuation of patents. He also highlights certain flaws in the judgment and concludes by highlighting the disparity in jurisprudence across jurisdictions on royalty payments.

Topical Highlights

In her guest post, Simrat Kaur discusses the nuances affecting the functioning of copyright societies. She discusses the recent application by Recorded Music Performance Ltd.’s to become a copyright society and argues that it would better if this application is rejected. She argues that Phonographic Performance Ltd. already operates as a society in the sphere of public performance and broadcasting rights, and adding another society would be detrimental to all stakeholders involved.

Prarthana covered the recent policy on health care released by the Competition Commission of India. In Part-I, she notes that the attempt by CCI to address issues of competition in the pharmaceutical is unique, and brings out important issues that lead to an informational asymmetry between the consumers and manufacturers. She also highlights that the policy shifts the approach of the government from price control measures to trade margin rationalisation. In Part-II of her post on the Policy, she analyses the attempt of the policy to regulate ‘e-pharmacies’ with the release of the 2018 Draft Rules. However, she advises caution on privacy issues that may arise, especially with respect to the portability of patient’s data amidst bans over cross-border transfers.

Other Developments


Sony Corporation v. Mr. Suresh Kaouromal Gambani – Delhi High Court [October 22, 2018]

The court granted a permanent injunction restraining the defendants, M/s Ashish Garments from infringing upon the Plaintiff’s trademark, SONY, by selling their goods under the mark SONY or any other mark deceptively similar to the mark SONY. The court also directed the defendants to voluntarily withdraw their trademark applications consisting of the word ‘SONY’ and change their Trade address from “SONY House” to a name which did not infringe upon the Plaintiff’s trademark. The court took note of the defendants’ acquiescence to the suit being decreed according to the prayer of the Plaintiff and allowed the defendants’ plea to exhaust their existing stocks within 9 months.

M/S. SuperCassettes Industries v. Sky Cable Network – Delhi District Court [October 30, 2018]

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 and also pay punitive damages of Rs. 20 lakhs to the plaintiff.

Star India PrivateLimited v. Department of Industrial Policy and Promotion – Supreme Court [October 30, 2018].

The plaintiff challenged the jurisdiction of TRAI and the Telegraph authority in regulating the content of the broadcast, like the channels or its programmes and contended that the TRAI Act impinged upon the compensation payable for copyright, which was protected by the Copyright Act, by regulating prices for channels. The court held that the TRAI and the Telegraph Authority have jurisdiction in regulating the content and that such regulation was valid because broadcasters were regulated only to the extent of discriminatory pricing and unreasonably restricting the choice of consumers. The court further held that in case of any inconsistency between the Copyright Act and the TRAI Act, Telegraph Act, the latter were statutes conceived in public interest, protecting the interests of both broadcasters and consumers and hence would prevail over the Copyright Act which only protected the property rights of the broadcasters. The court took the view that there was no merit in the appeals and accordingly dismissed them.

Christian Louboutin Sas v. Nakul Bajaj – Delhi High Court [ November 2, 2018]

The Plaintiff, a luxury shoemaker approached the court seeking an injunction restraining the defendants, owners of the e-commerce website “darveys.com”, from infringing the mark, CHRISTIAN LOUBOUTIN through their website or using it without authorization from the Plaintiff. The court rejected the contention of the defendants that they were intermediaries and held that the defendants played a very active role in selling the product and hence could not claim the immunity of being an intermediary under S. 79 of the IT Act. The court directed the defendants to disclose the complete details of all their sellers on their website, to obtain a certificate from the sellers regarding the authenticity of the products and remove all meta-tags consisting of marks belonging to the Plaintiff, a luxury shoemaker The court did not award damages or costs as although the Plaintiff’s products were advertised, they were not sold on the platform.

M/S Ganesh Marketing Co. v. Jai Hanuman Trading Co. – Delhi District Court [November 2, 2018]

The court refused to grant an injunction restraining the defendants as the Plaintiffs had exhausted their right to lead any evidence to prove their claim that the defendant, through their mark, SHYAM SAVERA infringed upon the Plaintiff’s mark, ASSAM SAVERA. The court had arrived at a preliminary finding that the marks are not deceptively similar owing to the limited geographical area of operation of the Plaintiff and the fact that their areas of business had no similarity, however, due to the non-appearance of the defendants and the failure of the Plaintiff in proving their claim, the court dismissed the suit and no orders as to costs were passed.



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