Others

SpicyIP Weekly Review (July 15-21)


Thematic Highlight 

Divij wrote a post on a recent proposal of the WIPO, called ‘Building Respect For Intellectual Property Database Project’, an online platform to which authorized agencies in WIPO Member States can upload lists of websites which deliberately facilitate copyright infringement. Divij focuses on several ambiguities in this proposal, such as the identities of these ‘authorised agencies’ and the authoritativeness of such a list. He concludes by stating that the WIPO seems to be endorsing a system for removing funding from internet resources which are deemed ‘suspicious’ by private actors, under the pretence of tackling piracy.

Topical Highlight

Eashan Ghosh wrote a guest post on the recent Delhi High Court decision restraining various e-commerce platforms (Defendants) from enabling sale of products of ‘direct selling’ companies (Claimants) without their consent. In his post, he focusses on the Court’s interpretation of ‘direct selling’ and notes that it is understood on parallel with common sale through distributors, and excludes retail sales and e-commerce sales. He then focusses on the Court’s reliance on Section 30(4) of the Trade Marks Act which allows for actions for infringement to be brought against a re-seller under certain conditions and concludes that the Court was correct to test the case against this provision. Lastly, he also notes that the Court observed that the Defendants’ depiction of the Claimants’ trade marks in advertising, promotions and meta-tags was impermissible and states that this may have future implications.

Other Posts

We had two more additions to our blog post series on The Sustainable Seed Innovations Project by Natalie Kopytko, a Post-Doctoral Research Associate of the University of Leeds. She wrote two stories about the achievements of innovative farmers and the challenges faces by them. Her first story revolves around Jitu Saikia, a sericulturalist who rears Muga silkworms. Her post focusses on his host plant diversity approach and how it boosts silk production. Her second story provides a glimpse into the lives of rice farmers based in Assam. In this story, she demonstrates how  traditional ecological knowledge, specifically seed selection, led to the wide range of rice varieties cultivated today.

Other Developments

Indian

Judgments

Societe Des Produits Nestle, S.A. and Another v. Kaira District Cooperative Milk Producers – Delhi High Court [July 10, 2019]

The dispute between the Parties arose on account of the Respondents’ alleged use of the mark “A+” in infringing and passing off the Appellants’ mark “a+” in relation to dairy products. The Single Judge passed an interim injunction in favour of the Appellants, whereby both the Parties were directed to maintain status quo in respect of their marks. The Appellants challenged this order of the Single Judge stating that it could apply its mark “a+” in respect of goods other than milk, thereby changing the status quo ordered to be maintained by the Single Judge. The Court partly allowed the appeal and observed that the Single Judge could not restrict the Appellants from using its mark in respect of particular goods, as the suit had been instituted by the Appellants against the Respondents, and not the other way round. Moreover, the Court noted that the Single Judge had incorrectly applied the tests of “balance of convenience” and “irreparable loss”, by not applying the same relief sought by the Appellants.

Hindustan Unilever Limited v. Vijay Vishwakarma – Calcutta High Court [July 10, 2019]

The Court granted a decree of interim injunction restraining the Defendant from infringing and passing off the Plaintiff’s mark “SURF EXCEL”, and copyright in its packet by using an identical mark and packet for selling detergent. The Court noted that the Defendant’s product was sold in a colourable and deceptive imitation of the Plaintiff’s mark and label which gave rise to a prima facie case against it.

Mankind Pharma Limited v. Lee Pharmaceuticals of Lee House – Delhi High Court [July 12, 2019]

The Court granted a decree of permanent injunction restraining the Defendant from infringing the Plaintiff’s copyright in its website “www.mankindpharma.com”, by using identical material on its website “www.leepharmaceuticals.in” in respect of medicinal drugs. Additionally, the Court restrained the Defendant from passing of its business as being affiliated to that of the Plaintiff.

Xerox Corporation and Another v. P.K. Khansaheb and Another – Delhi High Court [July 12, 2019]

The dispute between the Parties arose on account of the Defendants’ alleged infringement and passing off of the Plaintiff’s mark “XEROX” by using a deceptively similar mark “ZEROX” in its tagline for a mango candy “KACHE AAM KA ZEROX”. An interim order was passed in the Plaintiff’s favour in 2014, wherein the Court restrained the Defendant from using the mark “ZEROX” in its advertisement.  Subsequently in the latest hearing, the Defendant stated that it had no intention to re-telecast its advertisement containing the tagline “KACHE AAM KA ZEROX”. Accordingly, the Court directed the Defendants to not re-launch the impugned television commercial with the word “ZEROX” or with any other similar or identical mark. Furthermore, the Court ordered the Defendants to withdraw the oppositions filed against the Plaintiff’s mark.

Dish TV India Limited v. Prasar Bharti – Delhi High Court [July 16, 2019]

The Court granted a decree of interim injunction restraining the Defendant from infringing and passing off the Plaintiff’s mark “DISHTV” by using the mark “DD FREE DISH” in respect of Direct To Home (“DTH”) services. The Court noted at the onset that the word “DISH” found in the Plaintiff’s mark was not generic in nature, as it had been registered since 16 years without any objection. Moreover, the Court noted that “DISH” or “DISH antenna” in itself were not essential for DTH services, and hence could not be considered generic marks. The Court while deciding on the grant of interim injunction held that the mere use of the word “DD” could possibly give an impression to consumers that Doordarshan was associated with the Plaintiff. Accordingly, the Court granted the interim injunction holding that irreparable injury and balance of convenience were implicit in the case.

News

International

 

 

Leave a Reply

Your email address will not be published.