Others

SpicyIP Fortnightly Review (March 11-24)


Divij wrote a post on the draft e-commerce policy released by the Department for Promotion of Industry and Internal Trade. In his post, he focusses on the anti-counterfeiting measures to be adopted by e-commerce platforms and how they may adversely affect the freedom of small vendors and marketplaces. He then analyses the anti-piracy measures to be adopted and the suggestion to return to the notice and takedown approach for copyrighted content. He notes that this may lead to a disproportionate restriction in most cases.

Balu wrote a case analysis on a recent Delhi HC order dealing with an application filed for an interim injunction against the publication of certain allegedly disparaging advertisements by the defendant. The Court held that the impugned advertisement could be protected under Article 19(1)(a) as commercial speech. In his post, Balu notes that though the Court reaches the correct conclusion, its reasoning for the same is faulty since the Court could not justify the horizontal application of fundamental rights in a dispute between two private parties.

Pankhuri announced that the Franklin Pierce Center for Intellectual Property at the University of New Hampshire School of Law (UNH) and Royzz & Co. (erstwhile Solomon & Roy) have partnered to offer a scholarship for prospective international LL.M. students specialising in IP Law. The last date for submitting applications for the scholarship is May 15, 2019.

Other Developments

Indian

Judgments

Hotel Panchvati and Another v. The Panchvati Hotel – Bombay High Court [February 15, 2019]

The Court granted an ex parte interim injunction restraining the Defendant from infringing and passing off the Plaintiff’s mark “PANCHVATI” by using a deceptively similar mark in respect of hotel and food services. In arriving at the decision, the Court observed that the Plaintiff was the registered proprietor of the mark and that the mark had attained immense reputation and goodwill due to its open and continuous use. It was further stated that it would be misrepresentation to the public if the Defendant was allowed to use the Plaintiff’s mark.

Darshan Jain and Another v. Piyush Surana – Bombay High Court [March 1, 2019]

The dispute between the Parties arose on account of the Respondent’s use of certain textile print drawings belonging to the Petitioner in an exhibition. The Petitioner filed an FIR and the Respondent admitted his guilt on being questioned by the police. Moreover, the Petitioner also filed a case for restraining the Respondent from using its drawings and appointment of a Court Receiver for seizing the goods. Subsequently, the Parties amicably settled the matter but the Respondent violated the settlement terms and destroyed evidence against it. The Court noted that the custody of the seized goods was with the Court Receiver when the Respondent destroyed the evidence, thereby committing a contempt of Court. Accordingly, the Court imposed a fine of Rupees 15 lakhs and simple imprisonment for a period of 4 weeks.

M/s Swagath Motels Pvt.Ltd. v. Hotel Swagath – Telangana High Court [March 13, 2019]

The dispute between the Parties arose on account of the Appellant’s use of the mark “SWAGATH” being identical to the Respondent’s mark in respect of hotels and catering services. The Lower Court granted an interim injunction in favour of the Respondent, and restrained the Appellant from using the mark. On appeal, the Court noted that the Lower Court had failed to discuss the similarity or dissimilarity between the Parties’ marks, in addition to wrongly presuming that the Respondent’s word mark was registered. The Court further observed that the word “SWAGATH” was common to trade and non-distinctive, thereby preventing the Respondent from the exclusive use of the word, except as part of its device. On comparison of the Parties’ marks, the Court noted that the Appellant’s mark “SWAGATH” bore no resemblance to the Respondent’s device. Ultimately, the Court stated that the Appellant had made honest, open and concurrent use of the mark since 2008. In light of all these reasons, the Court set aside the order of the Lower Court and remanded the case to be decided by the trial court.

Tata Chemicals Limited v. Puro Wellness Private Limited – Delhi High Court [March 15, 2019]

The dispute between the Parties arose on account of an advertisement campaign initiated by the Defendant where it was alleged to have made false, baseless and reckless statements against the Plaintiff’s product, “TATA SALT”. In the case initiated by the Plaintiff, the Court noted that the cause of action was separate, distinct and continuous in nature which would distinguish it from other actions filed by the Plaintiff, and hence the charge of forum shopping would not hold good against it. The Court observed in respect of the Defendant’s advertising material that it meant to denigrate white salt and especially cast aspersions on the Plaintiff’s product by making a reference to it. Accordingly, the Defendant was restrained from televising or publishing any commercials or any other advertisement which would result in the disparagement of the Plaintiff’s product.

News

International

 

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