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SpicyIP Weekly Review (September 9-15)


Prashant analysed the challenges highlighted by a recent report released by the Indian Music Industry (IMI) and Deloitte:

(i) Music Piracy:  He states that it is not very relevant in a day and age where everyone has free access to music if s/he has access to the internet.

(ii) Value-gap: He agrees with the report’s stance on the issue of value-gap due to legislative measures such as: (1) Section 31D of the Copyright Act, which allows the radio and television industry to apply to the Copyright Board (now the IPAB), for statutory licenses to broadcast music owned, by the music labels, at a rate fixed by the tribunal, which is usually very low, and (2) safe harbour protection of intermediaries, under which intermediaries are not required to take down material for a period more than 21 days unless the music label is able to get a court order.

(iii) Public performance rights compliance: This issue relates to the difficulty faced by the music industry in convincing event managers to purchase music licenses. Prashant states here that the event management industry complain that though they remain ready to pay up, they often face extortion from the music industry for buying licenses.

(iv) Converting to subscription services: The report states that OTT streaming services aim to convert their listeners into paying customers who subscribe and pay for music on a monthly basis. Prashant, however stated that the Indian market is quite unique and may need a  different business model in this regard.

Aparajita wrote a post on a Delhi High Court judgment, wherein the Court dealt with a trademark infringement and passing off dispute between Juggernaut Books Private Limited, an Indian company (plaintiff) and a US based company (the defendant). The plaintiff offered its books and services on a subscription based website www.juggernaut.in and they own a trademark on the word ‘Juggernaut’. The defendants offered similar services through a website entitled www.thejuggernaut.com. This caused confusion amongst Indian consumers and the plaintiff filed a suit before the Delhi HC. The Delhi HC passed an ex parte interim order restraining the defendants from using the mark ‘Juggernaut’ and ordered them to block the domain name www.thejuggernaut.com till the next hearing. In her post, Aparajita notes that the Court has applied the purposeful availment tend, i.e.,  in order to establish a cause of action, courts in India require the plaintiff to establish that the defendant has purposely availed itself or targeted consumers of the jurisdiction of the forum court. She points, however, that this test is at odds with the CPC, which requires the plaintiff to choose a forum court based on where the cause of action arises. She also highlights the larger issue of enforcement of orders against foreign defendants which arises here. She points out that, had it not been for the Delhi HC’s order, the plaintiffs would have to undertake an expensive journey to the US to avail justice.

Other Developments

Indian

Judgments

Hindustan Unilever Limited v. Pappu Kumar – Calcutta High Court [September 4, 2019]

The Court granted a decree of interim injunction restraining the Defendant from infringing the Plaintiff’s mark “SURF EXCEL” by using the mark “SURF EXCEL PLUS” in respect of selling detergent. The Court observed that the Plaintiff was the registered proprietor of the mark and the Defendant had adopted a colourable and deceptive imitation of the same. Moreover, the Court noted that the Defendant’s products were sold in packets which were prima facie infringing of the Plaintiff’s copyrighted artistic works.

Super Cassettes Industries Private Limited v. M/s. M. World TV News – Delhi District Court [September 6, 2019]

The Court granted an ex parte permanent injunction restraining the Defendant from broadcasting 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 costs of Rupees 10 Lakhs, a sum arrived at by the Court through observation of the non-compliance on the part of the Defendant even after being tendered a cease and desist notice.

News

  • In a recent order, the Delhi HC reiterates the obligation of online intermediaries when it comes to online content which infringes intellectual property rights.
  • The TM Registry proposes to restrict display of documents containing parties’ confidential information on its website.
  • The Start Up Intellectual Property Protection  scheme has been extended to all applicants using the services provided by WIPO’s Technology and Innovations Support Centre (TISCs).
  • The IPO released the list of scientific advisers, as required under Section 103 of Patent Rules, 2003.
  • Madras HC dismisses plagiarism case filed against the movie ‘Kaappaan’.
  • India will be hosting the meeting of RCEP members on September 14-15.
  • Delhi HC restrains the makers of ‘Dream Girl’ from exploiting the Marathi song ‘Var Dhagala Lagli Kal’.
  • Director Praveen Mochale has filed a case in the Bombay HC against the writer and the producer  of the movie ‘Bala’ , alleging plagiarism.
  • ‘Srivilliputhur Palkova’, a milk sweet produced in Tamil Nadu,  gets GI tag.

Opinions

A piece in the Indian Express covers the rise in property claims by companies by focussing on FC5, a potato crop grown by Haribhai Devjibhai Pateland to which US company PepsiCo has claimed rights.

International

  • Google wins legal battle in Germany over copyright fees demanded by publishers.
  • Nintendo filed a suit against RomUniverse.com, for hosting free downloads of Nintendo games.
  • YouTube shuts down music companies’ use of manual copyright claims to steal creator revenue.

 

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