Others

SpicyIP Weekly Review (January 7-13)


Thematic Highlight 

We had a guest post on the issue of whether Braille, as a language, is capable of translation, reproduction or adaptation. The author first analyses the nature of Braille and comes to the conclusion that it’s a universal code for all languages and hence, can only be transliterated and not translated. She then analyses whether the conversion of a literary work to Braille would constitute adaptation or reproduction under the Act. She also goes on to analyse whether the same would fall under ‘accessible formats’ under Section 52(1)(zb) and hence, not be counted as infringement. She concludes that there is a need to address the legal lacunae in the application of the Copyright Act to Braille.

Topical Highlight

Prashant wrote about the recent SC judgment where the Court set aside the Delhi HC’s judgement which had revoked Mosanto’s patent and remanded the matter to the trial court. The Supreme Court based its decision on the reasoning that Mosanto had only consented to a waiver for a trial on patent infringement and not patent invalidity, as concluded by the Division Bench. Prashant, in his post, however draws our attention to an order passed in 2017, from which we can conclude that Mosanto must have consented to a waiver of trial on the invalidity issue.

Divij wrote about a recent draft amendment to the Indian Cinematography Act which states that any person caught recording a film or its sound recording without permission from the copyright owner would be imprisoned for 3 years and/or pay a fine of Rs. 10 lakhs. In his post, Divij points out several issues in the draft amendment including its shoddy drafting and its dicey position vis-a-vis the Copyright Act, amongst other glaring flaws.

Other Posts

Pankhuri provided us an update on the Patent Working PIL. The Government had last agreed to publish the amended version of Form 27, as approved by the DIPP, on or before July 6 last year. It has still not done this till date. Also, the Government did not follow the Court’s directions and made no reference to Form 27 or patent working in its amendments to the Patent Rules, released last month. On 7th January, an application was filed by the Petitioner before the Court, drawing attention to this prolonged delay.

Prof. Basheer wrote a brief piece on the “FUCT” trademark issue. Recently the Court of Appeals for the Federal Circuit ruled that the USPTO’s refusal to grant trademark to the “FUCT” line of apparel on the grounds of immorality/scandalous subject matter was unconstitutional and against the principle of free speech. In his discussion of this recent development, Prof. Basheer raises a question (which he has done in a couple of posts previously too): Should IP offices decide what is moral and what is immoral?

SpicyIP Announcements

Pankhuri informed us about a call for submissions to the Indian Journal of Law and Technology Blog. They are calling for articles from students and academics who are interested in the field of law and technology.

Other Developments

Indian

Judgments

Meena Prints Private Limited v. Sri Sai Bhavani Handlook House and Other – Bombay High Court [January 3, 2019]

The Court granted a temporary injunction restraining the Defendant from using the marks “MEERA PRINTS” or “MEENA PRINTS” in infringing and passing off the Plaintiff’s identical/ deceptively similar mark in respect of textile goods. The final disposal of the case was set for 21 January 2019.

The Ritz Hotel Limited v. Canada Fly Consultancy & Others – Delhi District Court [January 3, 2019]

The Court granted an ex parte permanent injunction restraining the Defendant from using the word “RITZ” in its domain name in infringing and passing off the Plaintiff’s identical mark in respect of hospitality services. In arriving at the decision, the Court noted that the mark “RITZ” was registered in the Plaintiff’s name and by its long, extensive and continuous use, it had become inseparable and synonymous with the goods of the Plaintiff. Consequently, the Court expressed its apprehension that if the Defendant was permitted to use the mark, it would cause wrongful loss not only to the Plaintiff but also the public at large. The Court also considered it appropriate to grant punitive and compensatory damages to the tune of Rupees 1 lakh in light of the Plaintiff being unnecessarily dragged into litigation.

State v. Tribhuvan Sharma and Others – Delhi District Court [January 4, 2019]

The accused in this case were found in possession of 45 fake laptop batteries and 54 fake laptop adapters having a duplicate logo of “HP”, without any proper bill or purchase documents. The Court emphasized that it was a principle of criminal law that prosecution is supposed to prove its case beyond reasonable doubts by leading on reliable, cogent and convincing evidence. It was noted in the findings of the Court that one of the Prosecution Witness was not even able to clearly identify the accused persons in the Court, and that the police had failed at an honest attempt to join public witnesses during the raid. In light of these lapses, the Court noted that the Prosecution had failed to prove the case beyond doubt or that the accused persons were present at the shop at the time of the raid conducted by the police or that the goods were counterfeit in nature.

Levi Strauss & Co. v. Anto Mani Roy – Delhi District Court [January 4, 2019]

The Court granted a permanent injunction restraining the Defendant from using the mark “LEVI’S”, in infringing and passing off the Plaintiff’s identical mark “LEVI’S” in respect of readymade garments as well as allied and cognate goods. In arriving at this decision, the Court took cognizance of the fact that the Plaintiff was the registered proprietor of the mark “LEVI’S”. It was also stated by the Court that the Local Commissioner’s report on the seizure of infringing goods also pointed to goods carrying the logo and mark identical to that of the Plaintiff.


M/s. Super Cassettes Industries Private Limited v. M/s. CTV Cable Network
 – Delhi District Court [January 4, 2019]

The Court granted a permanent injunction restraining the Defendant from broadcasting Plaintiff’s copyrighted musical and audio visual works through its cable network namely, “CTV NEWS” without obtaining any license. In arriving at this decision, the Court stated that continuous infringement by the Defendant had caused substantial loss and damage to the Plaintiff’s business which was predominantly dependent on license income. The Court in pursuance of the aforementioned awarded punitive damages of Rupees 15 lakhs in favour of the Plaintiff.

State v. Aakash Gupta – Delhi District Court [January 8, 2019]

The case against the accused was that he was found in unauthorized possession of articles pertaining to the brands of M/s. Hindustan Unilever Limited (“HUL”), for which he had no license or authority under the Copyright Act. The Court recorded that it was a principle of criminal law that prosecution was supposed to prove its case beyond reasonable doubts by leading on reliable, cogent and convincing evidence. In the present case, the Court noted that the Prosecution could not prove that the Protector was an authorized representative of HUL or that HUL had registered copyrights in the seized articles. Further, it was also noted that the Prosecution’s witnesses had given contradictory testimonies and due to patent contradictions in the Prosecution’s case, the benefit of doubt had to be extended in favour of the accused. Thus, the accused was acquitted of the charges against him.

Roderick John Andrew Mackenzie v. Himalayan Heli Services Private Limited – Delhi High Court [January 8, 2019]

The dispute between the Parties arose on account of the alleged use by the Defendant of the Plaintiff’s copyright in his artistic work “HIMLAYAN HELI SERVICES”. The Court first decided the issue of whether the Plaintiff had a copyright in his artistic work. It was noted by the Court in this respect that the Plaintiff had merely contributed to an aspect of the artistic work whereas the copyright in a work would exist only for the composite mark. Accordingly, the Court stated that none of the Parties had copyright in the artistic work. The Court also noted in an answer to another issue that the Plaintiff was guilty of suppressing material facts in relation to the artistic work. In order to arrive at this conclusion, the Court stated that the Plaintiff had suppressed the fact that it was acting in association with the Defendant in creating and using the artistic work while conducting a joint business. Subsequently, it was noted by the Court that there could be no case for permanent injunction in favour of the Plaintiff as there was no copyright in the Plaintiff’s artistic work.

Needle Industries (India) Private Limited and Another v. Virmual Praveen Kumar – Delhi High Court [January 8, 2019]

The Court granted a permanent injunction restraining the Respondent from using the mark “555” in infringing and passing off the Appellant’s identical mark in respect of haberdashery goods. In the previous suit, the Respondent had conceded the issue pertaining to ownership of the mark in favour of the Appellant. The Court thus cited the previous suit and held that the Appellant being the owner of the mark “555” had the exclusive right to use it in respect of goods.

HSIL Limited v. Gujarat Ceramic Industries & Another – Delhi High Court [January 8, 2019]

The Court granted an ex parte permanent injunction restraining the Defendants from using the marks “HINDUSTAN VITREOUS” or “H VITREOUS” in infringing and passing off the Plaintiff’s identical/ deceptively similar marks in respect of sanitary ware products. In arriving at this conclusion, the Court noted that the Plaintiff was the registered proprietor of the mark. Further, the Court noted that the Defendants had no real prospect of defending the claim as the evidence of the Plaintiff was unrebutted.

News

International

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