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SpicyIP Weekly Review (July 22-28)


We have had a gargantuan week at SpicyIP, with plenty of content on recent decisions around courts, and updates from the Sustainable Seed Innovations Project. Below is a summary of the week gone by:

Topical Highlight

In a guest post, Swaroop Mamidipudi wrote on twin decisions of the Delhi High Court that expand the scope of protection of cinematograph films. Prior to this decision, it was understood that copyright in cinematograph films could only be infringed if a physical copy of the film is made. However, these decisions goes one step further to note that substantially similar films, even if reshot, can violate the copyright in a cinematograph film. Swaroop argues that this interpretation is incorrect, and may also disturb the balance of power in the cinema industry.

Thematic Highlight

In a guest post, Simrat Kaur writes on the impact of mandating automatic filtering of copyright-infringing content by internet intermediaries. She discusses Rule 3(9) of the Draft Intermediary Amendment Rules, 2018, which requires intermediaries to set up automatic filters for defamation. She notes that the principal opposition to this provision is the scepticism over whether AI technology will be able to recognise the subjective contexts in which the same material may be appropriate or inappropriate. Simrat notes that intermediaries should shoulder the responsibility of weeding out inappropriate content since it is they who benefit from content generally. She further notes that the concern with respect to the pricing out of start-ups due to such technology may be tackled by exempting them from the obligation to set up automatic filters.

Other Posts

In a four-part post, Professor Gregory Radick provides an overview of the educationally focused “second prong” of the position paper’s three-prong approach. He discusses the need to redesign elements of agricultural training to ensure a better fit with the goal of greater sustainability, looking in particular at how his historical research into the organization of knowledge in two areas — Mendelian genetics and intellectual property — has opened up new options (Part 1, Part 2, Part 3, Part 4).

In a three-part post, Dr Mrinalini Kochupillai discusses Prong 3 of the Sustainable Seed Innovations Project, which comes while India is looking to adopt various blockchain solutions on the one hand, and debating a ban on cryptocurrencies on the other. She provides an overview of the key beneficial features of blockchain technology, how the potential use cases of blockchain technology go well beyond the financial services sector, and, most importantly, how this technology is highly promising for the cause of promoting and incentivizing sustainable seed innovations (Part 1, Part 2, Part 3).

In a two-part post, Julia Köninger shares the findings of her investigation into research funds that flow into different farming approaches. She notes that most funding currently flows into high-input farming neglecting the sustainability of these practices. It emphasizes the consequent dearth of research for low-input farming and shows the urge to adapt research funds in order to close current knowledge gaps (Part 1 and Part 2).

In another post on the Sustainable Seed Innovations Project, Natalie Kopytko shared stories of farmers using traditional methods to store seeds. She notes that the chemical-free techniques of cultivation that depend on using seeds of traditional varieties can provide a strong foundation upon which much knowledge can be built. In another post, she then shared stories of farmers creating model farms to educate others about natural farming methods in Seva. The cultivation techniques are a crucial aspect of sustainable innovations; moreover, this story discusses community support and socio-economic sustainability. Finally, in another post, she shared the story of a variety of wheat recently named Sona Moti. By way of context, she briefly describes the current revival of ancient grains globally, specifically Emmer wheat varieties. The story of Sona Moti demonstrates the issues of traceability in variety development and the importance of intellectually property-broad.

In a four-part post, Dr Mrinalini Kochupillai identifies key legal hurdles that currently prevent sustainable seed innovations in India. She discusses how blockchain/DLT, coupled with AI/Machine learning applications can potentially help overcome these hurdles. In the final part of this blog post, she also highlights certain ethical issues that might arise when rolling out technological solutions based on blockchain/DLT/AI. She recommends that these ethical issues be thoroughly researched from multi-disciplinary as well as multi-stakeholder perspectives, in order to ensure that the prescribed solution does not lead to new problems. The necessity to neither roll out nor reject a promising technology that is at its nascent stages of development is also highlighted. (Part 1, Part 2, Part 3, Part 4)

In her fourth submission for the SpicyIP Fellowship, Arushi Gupta unpacks certain issues pertaining to intermediary liability that arose in the recent Amway decision of the Delhi High Court. First, she notes that the judge interpreted the term ‘seller’ and ‘use’ under the Trade Marks Act to place the responsibility on intermediaries when they help with: advertisements, offers of sale, meta-tags and promotions. Second, she notes that the placement of goods on the Direct Selling Market constituted meant that they had been ‘put on the market’, and therefore, the defendants may not rely on Section 30 of the Trade Marks Act as a defence. Lastly, she notes that the judgment leaves a large chunk of the ‘safe harbour’ defence for determination at a later stage.

SpicyIP Jobs

Pankhuri brought to our notice the opening of the positions of Attorney and Paralegal at Dodd & Co. an IP boutique law firm based in New Delhi.

Other Developments

Indian

Judgments

M/s. V.V.V. & Sons Edible Oils Limited v. M/s. Shivraja Impex Company – Madras High Court [July 1, 2019]

The Court granted an ex parte decree of permanent injunction restraining the Defendant from infringing and passing off the Plaintiff’s mark “IDHAYAM” by using an identical mark in respect of sesame oil. In arriving at this decision, the Court noted that the Defendant’s label was a perfect replica of the Plaintiff’s label, thereby indicating that the Defendant had intentionally copied the Plaintiff’s label in order to market its sesame oil.

M/s. Fine Footwear Private Limited v. Skechers U.S.A. Incorporation and Others – Karnataka High Court [July 15, 2019]

The civil court granted a temporary injunctive relief against the Petitioner. The Petitioner, in turn, filed a writ petition against this order claiming that the matter was exclusively triable by a commercial court, considering that the suit was a “commercial dispute”. The Court dismissed the writ petition, stating that a plaintiff had the privilege to choose the court and determine the valuation of the suit. In order to assail such choice of the plaintiff, the Court observed that the Petitioner had to bring forth material to show that the value of the suit was Rupees 3 lakh or above, as required for the suit to be exclusively tried by a commercial court. In such an instance where the pecuniary conditions for jurisdiction were not fulfilled, the Court noted that the wide ambit of Section 9 of the CPC, 1908, which gave expansive jurisdiction to the civil court would prevail. Accordingly, the Court held that the Respondents had validly invoked the jurisdiction of the civil court.


Balaji Kumar v. M/s. Star Polaris and Another
– Madras High Court [July 15, 2019]

The Respondent filed a petition in order to vacate the interim order granted in favour of the Appellant with respect to the release of its film “KOLAIYUDHIR KAALAM”. The dispute between the Parties concerned the copyright in the title of a book which was adopted for the title of a film. The Court noted at the onset that titles could not be considered as a subject matter of copyright protection but were protected through trademark and unfair competition laws. On the question of vacation of the interim order, the Court noted that the balance of convenience and the irreparable loss aspects were in favour of the Respondents. Accordingly, the Court vacated the interim order.

Natco Pharma Limited v. Bristol Myers Squibb Holdings Ireland Unlimited Company and Others – Delhi High Court [July 16, 2019]

The dispute between the Parties arose on account of the Appellant’s alleged attempt at commercializing and offering for sale the generic version of the molecule “APIXABAN”, patented by the Respondents, under the brand name “APIGAT”. The Single Judge granted an interim injunction in the Respondents’ favour restraining the Appellant from infringing their patent. The Court set aside the order of the Single Judge, and observed at the onset that the order passed by the Single Judge in the instant case was very similar to the order passed by it in Natco Pharma Limited v. Bayer Healthcare LLC, decided on the same day. Taking a cue from the Natco appeal decision, which involved almost identical facts, the Court stated that the Single Judge had failed to apply the three tests for the grant of an interim injunction. Moreover, the Court noted that the Single Judge had not clarified the scope of activities which the Appellant was allowed to carry out when the interim injunction was in force. In view of the aforementioned points, the Court ordered the Single Judge to decide the case by way of a fresh order.

Durian Industries Limited v. Binder Pal – Bombay High Court [July 16, 2019]

The Court granted an ex parte decree of interim injunction restraining the Defendant from infringing and passing off the Plaintiff’s mark “DURIAN” by using a deceptively similar mark “DURIAN TOUCH” in respect of home and office furniture. In arriving at the decision, the Court noted that the Plaintiff had made out a strong case for interim relief, and the balance of convenience was also in its favour. The Court also noted the Defendant’s deliberate absence in spite of being served twice

Exxon Mobil Corporation v. Exoncorp Private Limited – Delhi High Court [July 16, 2019]

The Court granted a decree of permanent injunction restraining the Defendant from infringing and passing off the Plaintiff’s mark “EXXON” by using a deceptively similar mark “EXON” in its corporate name as well as the domain name. The Court observed at the onset that the Plaintiff was the proprietor of the mark and had filed numerous petitions to protect it. In respect of the jurisdictional issue, the Court stated that the Court had jurisdiction to entertain the suit as the Defendant carried out its business throughout India, including Delhi. Furthermore, the Court noted that the Plaintiff’s mark was a well-known mark, and accordingly, the Defendant could not have used the same for even IT services. The Court concluded by stating that the mark adopted by the Defendant was almost identical to the Plaintiff’s mark and did not obviate the chances of confusion between the Parties’ marks.

Transformative Learning Solutions Private Limited v. Pawajot Kaur Baweja and Others – Delhi High Court [July 17, 2019]

The Court rejected the Plaintiffs’ application for the grant of a permanent injunction to restrain the Defendants from disclosing or using their trade secrets or using any other proprietary content, including the Plaintiffs’ copyright. The Defendants were the former employees of the Plaintiffs and had commenced fresh business after disassociating themselves from the Plaintiffs. An interim order was granted in favour of the Plaintiffs according to which the Defendants had been restrained from using any confidential information belonging to them. In rejecting the Plaintiff’s plea for a permanent injunction, the Court observed that though civil suits usually require each party to divulge details, there are certain documents and information which are not to be leaked in the public domain. However, the Court mentioned that the Plaintiffs’ choice of not sharing the confidential list of customers in which it claimed copyright would be unfair and contrary to law if the Defendants would be restrained by an injunction without even knowing the copyrighted content. Therefore, the Court gave the Plaintiffs a chance to make their confidential list available, but the Plaintiffs chose against it and thus the Court disposed of the review petition.

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