Others

SpicyIP Weekly Review (Jan 14-21)


Topical Highlight

Prof. Basheer wrote a post on the Monsanto decision that was recently passed by the Supreme Court. In his post, he highlights the magnitude of the litigation that has taken place and the different areas of law that must be considered. He also notes that much is yet to come from the dispute since the Delhi High Court will now conduct a trial over the patentability of the technology, which he suspects will also be a decision that will be challenged before the Supreme Court.

Thematic Highlight

Prarthana wrote a post on a recent order passed by the Delhi High Court in Rajat Sharma v Zee Media. The order imposes an injunction against Zee Media from using Rajat Sharma’s name in all its print and electronic advertisements, following its use in a malicious advertisement campaign by Zee. Prarthana notes that the court soundly relied on established precedent in reaching its decision, although the judgment was wanting of deeper discussion on this area of law.

Other Posts

In a guest post, Roshan John analyses the amendments proposed by the recently published Draft Patent (Amendment) Rules, 2018 in light of India’s recent agreement with Japan on having a patent prosecution highway program. He notes that this amendment will impact access to medicines, public health and the right to health of people, and the increased reliance on foreign patent offices like Japan would increase the number of patents by disregarding the quality of patents completely.

I wrote a post on IPRS’ recent readmission into Cisac, a global advocacy body for the rights of performers. IPRS had been removed in 2016 following violations of Cisac rules but has since become compliant after going through Cisac aided reformation.

Other Developments

Indian

Judgments

Nike Innovate CV v. Hina Imported Shoes (Settled) – Delhi High Court [January 7, 2019]

The Court granted an ex parte permanent injunction restraining the Defendant from using the mark “NIKE” in infringing and passing of the Plaintiff’s identical mark in respect of readymade garments, sporting goods and other allied products. The Court noted that the Plaintiff was the registered user of the mark and the mark had subsequently acquired distinct features in light of its prevalent use. Moreover, the inspection of the Local Commissioner also indicated that the goods of the Defendant were deceptively similar to those of the Plaintiff.

North Face Apparel Corporation v. Mohammad Nasim – Delhi District Court [January 10, 2019]

The Court granted an ex parte permanent injunction restraining the Defendant from infringing and passing off the Plaintiff’s registered trademark or copyright in the phrase “THE NORTH FACE” through its use in respect of the Defendant’s readymade garments, clothing, footwear 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 1 lakh in favour of the Plaintiff due to the loss caused to their goodwill and reputation.

The Nalgonda Rangareddy District Milk Producers Mutually Aided Cooperative Union Limited v. Mother Dairy Fruit and Vegetable Private Limited – Delhi High Court [January 10, 2019]

The dispute between the Parties arose on the use of the mark “MOTHER DAIRY” after the termination of a collaboration agreement between them. The Appellant could only use the Respondent’s mark “MOTHER DAIRY” in terms of the Settlement Agreement between the Parties after the termination of the aforementioned collaboration agreement. However, the Appellant continued the use of the mark even after the termination of the Settlement Agreement between the Parties. In view of the same, the Respondent filed a suit claiming infringement of its registered trademark. The Single Judge granted an injunction against the Appellant by restraining it from using the aforementioned mark in any form. The Court set aside this injunction of the Single Judge and stated that the Settlement Agreement specifically permitted the Appellant to use the mark “MOTHER DAIRY” in respect of its goods. Accordingly, the Court found it just to hold that the rights of the Parties would be governed by the Settlement Agreement until the final adjudication of the suit.

Hugo Boss Trade Mark Management GmbH and Company v. Ms. Sheetal Sabharwal – Delhi High Court [January 11, 2019]

The Court granted an ex parte permanent injunction restraining the Defendant from infringing and passing off the Plaintiff’s registered marks “HUGO BOSS”, “BOSS” and other “BOSS” formative marks by using a deceptively similar mark “BOSS BIG BOSS” in respect of apparel, garments and other allied and cognate goods. The Court observed that the Defendant had no real prospect to defend the claim as the mark was registered in favour of the Plaintiff and its use by the Defendant would inevitably infringe upon the Plaintiff’s reputation and goodwill.

Shriram Pistons and Rings Limited v. Owner/ Proprietor – Delhi District Court [January 15, 2019]

The Court granted a permanent injunction restraining the Defendant from using the marks “SHRIRAM” or “USHA” in infringing and passing of the Plaintiff’s identical marks in respect of engine components like pistons, valves, and other allied and cognate goods. In arriving at this decision, the Court noted that the Plaintiff was the registered owner of the marks. Moreover, the presence of counterfeit products bearing the Plaintiff’s marks in the Defendant’s possession, as recorded by the Local Commissioner was also considered by the Court. Accordingly, the Court stated that the Defendant had caused substantial loss and damage to the Plaintiff on account of continuous infringement of its marks. In light of the aforementioned, the Court granted damages to the tune of Rupees 2 lakhs in favour of the Plaintiff for the loss caused to its business.

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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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