SpicyIP Weekly Review (April 22-28)

Thematic Highlight

In her second application for the SpicyIP Fellowship 2019-20, Arushi wrote a post on Article 13 (now Article 17, in the final text) of the EU Directive. In her post, she focusses on the economic rationale of copyright law i.e., the trade-off between the cost of creation and the incentive to create. She concludes that Article 13 fails to balance this trade-off due to overuse of automation and the threats it poses to the participatory culture of the internet.

Topical Highlight

Divij wrote about India’s inclusion in the US Trade Representative Special 301 Report 2019. In his post, he mentions that India has been included in this list for the last 27 years. The Report points out several inadequacies in the Indian IPR regime, some of them being patent processing times, exports of counterfeit pharmaceuticals, FRAND licensing for GM products with seed companies (which was withdraw later) etc.

Other Posts

Prof. Basheer wrote a post on “Who am I? Of Patent Independence and ‘Adjudicative Regulators'”, a chapter in the third volume of the Kritika book series, which was jointly written by him and Rahul BajajIn their work, they delved into the role and functions of the Indian Patent Office and concluded that since the patent office is often expected to carry out a number of adjudicatory functions which  are “judicial” in character, they should be recognised as “Adjudicative Regulators.”

Pankhuri announced that the PHD Chambers of Commerce and Industry, in collaboration with United IPR, organised an interactive session on ‘Best Practices in IPR’’. The event was scheduled on April 26, 2019  and took place in New Delhi.

Further, she also notified us about a call for submissions for Volume 15 of the Indian Journal of Law and Technology. The last date for submitting original and unpublished manuscripts for the same is May 10, 2019.

Other Developments



Bata India Limited v. Chawla Boot House and Another – Delhi High Court [April 16, 2019]

The Court granted an interim injunction restraining the Defendant No. 2 from infringing and passing of the Plaintiff’s mark “POWER” by using a deceptive similar mark “POWER FLEX” for the sale of footwear. The Court deleted the name of the Defendant No. 1 on the grounds that it was a mere retailer, not engaged in infringement. In arriving at the decision, the Court noted that though the Defendant No. 2’s primary mark was “RED CHIEF”, it had used the mark “POWER FLEX” inside its shoes on a standalone basis. The Court further observed that the conflicting marks belonged to the category of footwear, and the Defendant No. 2 could not have pleaded ignorance about the existence of the Plaintiff’s famous mark. The Court also rejected the Defendant No. 2’s argument pertaining to the mark “POWER” being descriptive in nature because of its used in relation to footwear.

Living Media India Limited and Another v. Vijayan Madhavan Praveen and Another – Delhi High Court [April 16, 2019]

The Court granted an ex parte permanent injunction restraining the Defendant from infringing and passing off the Plaintiff’s registered mark “INDIA TODAY” by using a deceptively similar domain name “indiatoday24X7.com” in respect of online news services. In arriving at this decision, 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 the Defendant had failed to appear or file a written statement.

Koninlijke Philips N.V. and Another v. Amazestore and Others – Delhi High Court [April 22, 2019]

The Court granted an ex parte permanent injunction restraining the Defendants from engaging in piracy of the Plaintiffs’ registered design of beard trimmers, and from further infringing the copyright and trade dress in the trimmers’ packaging. The Court observed that on a close comparison of the products, it appeared that the Defendants’ products very closely resembled the aesthetics of those of the Plaintiffs’. It was also noted that such imitation on part of the Defendants was mala fide with an intent to operate in the same industry as that of the Plaintiffs. The Court observed in relation to copyright and trade dress that the Defendants had engaged in brazen reproduction of the Plaintiffs’ packaging in order to create deception among the buyers. Furthermore, the Court awarded compensatory damages to the tune of Rupees 2.15 crores in favour of the Plaintiffs for their repeated infringements, as well as aggravated damages to the tune of Rupees 1 crore, in light of the Defendants’ conduct of contempt in respect of the interim injunction.





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