Others

SpicyIP Weekly Review (June 17-23)


Pankhuri co-authored a post with Bhavik on a recent decision of the Delhi HC, which dismissed Bayer’s appeal and left it to the trial court to apply the reasonable relationship test for deciding whether the use and export of Bayer’s patented drug ‘Sorafenib Tosylate’ by Natco and Alembic was permissible under Section 107A of the Patents Act (India’s Bolar Provision). The Court ruled that the ‘export’ of a patented invention for experimental purposes was covered under the provision. In their post, the authors conclude that this is a positive development which will aid in ensuring genuine exports are unrestricted, increasing access to affordable medications and also protecting the rights of patentees at the same time.

Pankhuri also announced about the 7th SpicyIP Fellowship 2019-20! Interested candidates can apply till July 15, 2019. It’s been a great experience for us at SpicyIP and I would strongly urge anyone who has a flair for writing and a keen interest in IP law to consider applying for the Fellowship.

Other Developments

Indian

Judgments

M/s. Allied Blenders and Distillers Private Limited v. Rangar Breweries Limited – Delhi High Court [May 21, 2019]

The Court granted a permanent injunction restraining the Defendant from infringing and passing off the Plaintiff’s registered mark “OFFICER’S CHOICE” by using bottles embossed with the Plaintiff’s mark in order to market its country liquor. The Court noted that there had been various proceedings instituted against the Defendant in the past in order restrain it from using the bottles embossed with the Plaintiff’s mark. In light of the consistent default by the Defendant, it was observed by the Court that it was satisfied that bottles bearing the Plaintiff’s mark were in fact being used by the Defendant in some manner for sale.

Raj Rewal v. Union of India and Others – Delhi High Court [May 28, 2019]

The dispute between the Parties arose on account of the Defendant No. 2’s decision to demolish the Hall of Nations and the Nehru Pavilion, Plaintiff being the architect of these structures, for re-structuring the Pragati Maidan Complex. The question for consideration in the case was whether an architect, as author of an artistic work could restrain or seek compensation from the owner of the land on which the building was constructed, for demolition of such building. On an analysis of moral rights undertaken by the Court, it was noted at the onset that the Plaintiff should have been informed before demolition of the structures, and also furnished with the reasons for the same. The Court went on to analyse the position of copyright law qua property law, and observed that the former could not trump the constitutional right. It was further noted by the Court that moral rights of an architect in case of a building were restricted to the extent that such architect could claim the building to be his work and that such work could not be altered without his permission. However, the Court went on to observe that destruction of the building did not violate the moral right of the architect as the building no longer existed for a person to view and judge. Stating that the “requirements of urban planning outweigh the moral rights of an architect”, the Court noted that the right to property of the owner of a land would not be restricted by the moral rights of the author of an architectural work. The Court concluded that no jurisdiction in the world had prohibited demolition of a building or structure, and consequently dismissed the suit on the ground that the Plaintiff had no cause of action.

Sterlite Technologies Limited v. ZTT India Private Limited – Delhi High Court [May 31, 2019]

The Court granted an interim injunction restraining the Defendant from infringing the Plaintiff’s patent numbered “IN 241433” in respect of optical fibres. The Court noted that it could not arrive at a decision with respect to infringement of the Plaintiff’s patent. Nevertheless, it was observed that patent offering a limited monopoly, would be harmed if the Defendant was not restrained from using and marketing the patented invention. The Court noted that experimentation with interim orders was the need of the hour, and the grant of the aforementioned interim injunction would balance interests.

M/s. Sahee Leathers v. The Registrar of Geographical Indications – Madras High Court [June 14, 2019]

The Petitioner filed a writ petition praying for a writ of mandamus, directing the Respondent to hear and decide an interlocutory application filed by the Petitioner on the maintainability of a rectification application filed by some private parties. The Court noted the request of the Petitioner to be innocuous and accordingly directed the Respondent to hear and decide the aforementioned application within a period of six weeks from the receipt of the Court’s order. It was further observed by the Court that the rectification application could only be decided after the disposal of the interlocutory application.

Suraj Kumar Mahavir Prasad Jaiswal and Another v. M/s. Pragya Films and Others – Bombay High Court [June 17, 2019]

The Court granted an interim injunction restraining the Defendants from infringing copyright in the Plaintiffs’ film “F.O.S.L.A.” or any other film, by communicating it to the public, broadcasting it or exporting copies of the same until the next hearing of the case.

Royal Dryfruit Range v. Royal Suvidha – Bombay High Court [June 17, 2019]

The Court granted a permanent injunction restraining the Defendant from infringing and passing off the Plaintiff’s registered mark “ROYAL” by using an identical mark in respect of sale of dry fruits. In arriving at the decision, the Court observed at the onset that the Plaintiff could maintain its action for interim relief even though the registration of the assignment of the mark “ROYAL” in its favour was pending with the Registrar. Furthermore, the Court noted that the Plaintiff’s mark was senior as it had been carrying on its business since 2012 as opposed to the Defendant’s use of the mark since 2016. Ultimately, it was stated by the Court that the word “ROYAL” was a prominent and essential feature of the Plaintiff’s mark, and the Defendant had dishonestly adopted it with an intention to ride upon the goodwill and reputation of the mark.

Godrej Consumer Products Limited v. Shobha Berry – Bombay High Court [June 18, 2019]

The Court confirmed the continuance of a previously granted interim injunction against the Defendant restraining it from infringing the Plaintiff’s mark “GODREJ NO. 1” by using deceptively similar marks “STARGLOW NO. 1” and “BESTGLOW NO. 1”, as the Defendant failed to oppose the suit.

Devans Modern Breweries Limited v. Mount Everest Breweries Limited and Another – Calcutta High Court [June 19, 2019]

The Court disposed off the case directing that the interim injunction against the Respondents restraining them from infringing the registered design of the Plaintiff’s bottles, passed on an earlier date shall continue, considering that none of the Respondents appeared or contested the case.

Shambhu Nath and Brothers and Others v. Manish Jaiswal – Calcutta High Court [June 19, 2019]

The Court disposed off the case directing that the interim injunction passed against the Respondent on an earlier date restraining it from infringing the registered mark of the Plaintiff “TOOFAN” by using a deceptively similar mark “SHRI KRISHNA TOOFAN” shall continue, considering that the Respondent was not interested in contesting the case.

News

International

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