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SpicyIP Weekly Review (March 4-10)


In a guest post, Kartik Puttiah discussed the exclusions under Section 3(j) of the Patent Act in light of the Monsanto case. Specifically, he argues that excluding nucleotide acid sequences based on their use in plants is flawed since this does not constitute an evaluation of the subject matter, but rather its industrial application. He argues, further, that a balance between incentivising inventions in biotechnology and protecting farmers may be achieved by creating an exception for farmers under Section 47, while interpreting Section 3(j) in a manner that allows biotechnological inventions.

In another guest post, Alphonsa Jojan discussed the duties of Indian companies to share benefits under the Biological Diversity Act in light of Divya Pharmacy v Union of India. The author agrees with the verdict of the Uttarakhand High Court, which purposively interpreted the legislation to require benefit sharing on part of Indian companies with no foreign shareholding as well. She also discusses the implications of this judgment, which would require the creation of necessary frameworks and rules.

In a guest post, Swaroop Mamidipudi wrote on the scope of Section 31D of the Copyright Act in light of the recent litigation involving Spotify. He discussed the recent Office Memorandum released by the Department of Industrial Policy and Promotion, which brings internet broadcasting organisations within the ambit of the statutory licensing regime. He notes that the Government does not have the authority to release such a memo, and further, that internet broadcasters were not intended to be included in the regime by the legislature.

Other Developments

Judgments

Agarwal Deokinandan Gopiram v. Jagdamba Textiles Private Limited – Gujarat High Court [February 25, 2019]

The dispute between the Parties arose on account of the Respondent’s unauthorized use of the Applicant’s patented fabric dyeing machine. On being aware of such use of its patented machine, the Applicant sent across a desist notice. The Respondent in its reply tried to distinguish the working of the two machines. The Additional District Judge ruled in favour of the Respondent, to which the Applicant filed an appeal. The Court granted an injunction in favour of the Applicant, thereby staying the impugned order of the Additional District Judge. It was initially stated by the Court that the Respondent had failed to discharge the burden to prove that the Applicant’s machine was not patentable and that the balance of convenience was in favour of the Applicant as it was entitled to enjoy the fruits of its time and money invested for a period of 20 years.

Flipkart Internet Private Limited v. www.flipkartwinners.com and Others – Delhi High Court [February 26, 2019]

The Court granted a permanent injunction restraining the Defendants from infringing and passing off the Plaintiff’s mark “FLIPKART” by using an identical mark in respect of online e-commerce platforms or as a part of their domain names. The Court noted that the Defendants had no real prospect of defending the claims, and had failed to appear before the Court or file a written statement. The Court also ordered the internet and telecom service providers to block access to the Defendant’s websites.

Samsung Electronics Company Limited and Another v. Lakhan and Others – Delhi High Court [February 28, 2019]

The Court granted a permanent injunction restraining the Defendants from infringing and passing off the Plaintiff’s mark “SAMSUNG” by using an identical mark in respect of mobile phones, accessories and allied products. In arriving at the decision, the Court noted that the Defendant No. 8 had no real prospect of defending the claims, and had failed to appear before the Court. Moreover, the Court noted that though Defendant No. 21 had entered appearance, it had no prospect of defending the claims.

Super Cassettes Industries Private Limited v. Kumaon Broadband Company Private Limited – Delhi High Court [February 28, 2019]

The Court granted a permanent injunction restraining the Defendant from broadcasting the Plaintiff’s copyrighted works through its cable services. In determining infringement, the Court acknowledged that the Plaintiff had valid and subsisting copyrights in its works which could subsequently not be broadcasted by the Defendant without a valid license. The Plaintiff was further granted damages of Rupees 10 lakhs, a sum arrived at by the Court through consideration of the fact that the Defendant had been deliberate and conscious in infringing the Plaintiff’s works.

Radico Khaitan Limited v. M/s. Devans Modern Breweries Limited – Delhi High Court [March 7, 2019]

The dispute between the Parties arose on account of the Defendant’s use of the mark “GODFATHER ELECTRA”, being deceptively similar to the Plaintiff’s mark “ELECTRA”. In light of the Defendant’s attempt to sell under the same brand in Delhi, the Plaintiff filed a suit and the Court granted it an interim injunction. The Court further granted a permanent injunction in favour of the Plaintiff on the ground that it was the registered proprietor of the mark “ELECTRA”, and the Defendant could not claim any right to use the same on account of prior use as its application was filed subsequent to the registration in the Plaintiff’s name. The Court also denied any delay on part of the Plaintiff in filing the suit as it had reasonably notified the Defendant to cease such use.

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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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