Others

SpicyIP Weekly Review (Feb 11-17)


Thematic Highlight

I wrote a post on the extent of TRAI’s regulatory powers. The Supreme Court, in TRAI v DIPP, held that TRAI’s regulatory powers include the power to prohibit. Further, it held that a TRAI’s regulation are in public interest, and therefore, will remain valid even if they impinge upon rights under the Copyright Act, which only protects authors. I argue that the court’s findings on the purpose of the Copyright Act may be inaccurate in light of recent jurisprudence, and further note certain facets of TRAI’s regulatory powers that remain unclear.

Topical Highlight

Divij wrote a post about a press release that indicates that the final text of the EU Copyright Directive has been finalised. While the final text of the agreement has not been released yet, he discusses the purpose behind the new directive and the potential provisions that may come into force with the directive, especially the ‘Link Tax’ proposal and ‘Upload Filter’ proposal.

Divij also wrote a post about the notice and takedown regime under the US Digital Millennium Copyright Act in light of the de-indexing of a blog post on SpicyIP. He argues that a lack of due process under the DMCA for taking down content is problematic, and further that this may also have a detrimental impact on content available in the public domain.

SpicyIP Jobs

Pankhuri shared information about openings in consultancy positions in various offices of K&S Partners along with details for interested applicants.

Pankhuri also intimated us about the Justice Rajagopala Ayyangar Summer Fellowship programme at Inter University Centre for Intellectual Property Rights Studies (IUCIPRS) during April-June 2019 for teachers interested in research.

Other Developments

Judgments

Lumax Industries Limited v. Autonix Petrochem – Delhi District Court [January 31, 2019]

The Court granted a permanent injunction restraining the Defendant from infringing and passing off the Plaintiff’s registered mark “LUMAX” by using an identical mark in respect of automobile accessories. The Court was of the opinion that the Defendant had failed to rebut the evidence furnished by the Plaintiff through documents and its witness. Moreover, the Court noted that there was no reason to believe otherwise that the Defendant had not infringed the mark.

Hindustan Unilever Limited v. Utkarsh Somani & Another – Calcutta High Court [February 1, 2019]

The Court granted an interim injunction restraining the Respondent from infringing and passing off the Petitioner’s registered mark “LIFEBUOY” by using deceptively similar marks “LIKEBUOY” and “LOVEBOY” in respect of selling and distributing soaps. In arriving at this decision, the Court observed that the Respondent had adopted similar trade design, graphics and colour scheme to that of the Petitioner’s product. Consequently, it was noted that the Respondent’s use of the aforementioned elements of the Petitioner’s mark made it appear phonetically, visually and structurally similar to the Petitioner’s registered mark.

Khadim India Limited v. Mohammed Ayub – Calcutta High Court [February 1, 2019]

The Court granted an ex parte interim injunction restraining the Respondent from infringing and passing off the Petitioner’s registered mark “KHADIM” by using a deceptively similar mark “KHADAM” in respect of footwear. The Court noted that the franchisee agreement between the Parties had ended and therefore the Respondent had no right to use the Petitioner’s mark or any mark deceptively similar to it. Moreover, on a comparison of the two marks, the Court stated that the Respondent’s mark was a slavish imitation of the Petitioner’s mark and bore a significant resemblance to the same. Resultantly, the adoption of the mark by the Respondent was branded dishonest.

Whatman International Limited v. P. Mehta and Others – Delhi High Court [February 1, 2019]

The Court granted a permanent injunction restraining the Defendants from infringing and passing off the Plaintiff’s mark “WHATMAN” and its unique colour combination in the packaging of filter papers. The Court noted that the Defendants had failed to seriously challenge the proprietary rights of the Plaintiff in its mark. Moreover, the Court opined that the Defendants had colluded and repeatedly engaged in the dishonest practice of counterfeiting the Plaintiff’s goods. Accordingly, the Court ordered damages against the various Defendants for a sum of Rupees 3.85 crores in light of the consistent counterfeiting of goods and unauthorized use of the Plaintiff’s registered mark.

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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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