SpicyIP Weekly Review (March 15 – 21)

Topical Highlight

Sherlyn Chopra Case- Non-Consensual Sharing of Intimate Images/Videos, Obscenity Laws and Copyright Remedies

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In this post, non-consensual sharing of intimate images or videos from a copyright perspective, in light of the recent case filed against Sherlyn Chopra for sharing obscene content online. She first analyses copyrightability of obscene content. She notes decisions from Israel and England that have used grounds of immorality to deny copyright protection to works. She contrasts this with Indian copyright law where such grounds are not provided to deny protection. However, she notes that courts might still deny protection stating the cause of action to be based on an illegal or immoral act. She argues that such denial should not take place and highlights the harms of the subjective determination of Indian obscenity laws for the victims. She then discusses whether authorship will be imparted to the subject of a non-consensual image or video and notes that copyright law has traditionally given a secondary status on the subject, conferring authorship only on the individual capturing the subject. She suggests various models through which the victims can use the notice-and-takedown provisions of copyright law to get such content removed. She, however, ends with a note of caution that copyright law offers ineffective remedies as it mischaracterises the harm caused to the victim.

Thematic Highlight

Protection of Jewellery: A Combination of Trademark, Design and Copyright Law? – Part II

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In this post, Varsha continues her analysis of intellectual property protection available to jewellery. She notes that there does not appear to be any bar in bringing a suit with multiple causes of action rooted in copyrights, trademarks, or designs. She also notes the decision in A. Sirkar v. B. Sirkar Jahuree Pvt. Ltd. where surprisingly neither of the parties claimed jewellery was ineligible for trademark protection, even though arguably it would be excluded from shape mark protection. She then discusses the protection available to traditional designs in jewellery. She notes the absence of a sui generis protection for traditional cultural expressions (TCEs) leaving creators to choose between certification trademark (CTM) or geographical indication (GI) protection or both. She points to the difficulty in obtaining CTM protection due to the hassle of creating a certifying authority and the possible exclusion of jewellery as shape marks. Finally, she discusses GI protection accorded to jewellery designs in the past and highlights that such protections have largely been granted without specifying the special geographical link for protection. Moreover, GIs only protect the name of the products, while the knowledge and specialised techniques associated with it are excluded. Hence, the creators are left with a piecemeal combination of several intellectual property rights in absence of a specific TCE protection.

Other Post

UNH Franklin Pierce’s IP Summer Institute 2021 (May 24 – June 11, June 14 – July 2)

We informed our readers about the Intellectual Property Summer Institute (IPSI) being offered by the Franklin Pierce Center for IP of the University of New Hampshire (UNH) School of Law. It will take place in two sessions – May 24 to June 11, 2021 and June 14 to July 2, 2021. Further details about the Institute can be found in the post here.

Decisions from Indian Courts

  • The Delhi High Court in Jagmohan Ratra v. Ampa Cycles Pvt. Ltd., confirmed its earlier interim order granting a temporary injunction restraining the defendant from using any marks deceptively similar to the plaintiff’s ‘AMPA’ mark. [March 17, 2021]
  • The Calcutta High Court in Vikas D Jain v. Dilip Kumar Jain, modified the interim injunction granted against the defendant by the single judge and held that the possession of the alleged infringing goods will stay with the defendant, and granted time to the defendant to file an affidavit-in-opposition. [March 17, 2021]
  • The Delhi District Court (Patiala House) in Larsen & Toubro Limited v. Radheshyam Singh, granted a permanent injunction restraining the defendant from using any deceptively similar mark to the plaintiff’s registered Larsen & Toubro, L & T, LT, LT, LK and (i)GIC/GIC marks and awarded Rs 1 Lakh as damages. [March 17, 2021]
  • The Delhi High Court in Brittania Industries Ltd. v. ITC Ltd., re-notified the matter for later hearing as part heard after noting the defendant’s submission that the infringement or passing off suit cannot be with respect to the Veda Digestive biscuits sold by the defendant in pillow packs. [March 16, 2021]
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  • The Calcutta High Court in New Holland (Fiat) India Pvt. Ltd. v. The Controller of Patents and Designs, directed that the Registrar will not remove the appellants’ registered design till the pendency of the appeal. [March 16, 2021]
  • The Delhi High Court in Asociacion De Productores De Pisco A.G. v. Union of India, listed the matter for June 1 for considering the Respondent’s proposal that they will not invoke the GI registration of ‘PISCO’ for the Appellant’s application for registration of ‘Chilean PISCO’. [March 15, 2021]
  • The Calcutta High Court in Ganesh Grains Ltd. v. Shree Ganesh Besan Mill, granted an interim injunction restraining the defendant from using any marks deceptively similar to the plaintiff’s registered ‘Ganesh’ mark. [March 15, 2021]
  • The Karnataka High Court in N Dinesh Kumar v. Shweta Khandelwal, set aside the order of the trial court holding against the defendant in a trademark infringement case and asked the court to hear the matter afresh and dispose it. [March 15, 2021]
  • The Calcutta High Court in Shambhu Nath & Brothers v. Paras Nath Sharraf, granted an interim injunction restraining the defendant from using the plaintiff’s registered ‘tooFAN’ and ‘SNB’ marks. [March 15, 2021]
  • The Bombay High Court in Sanjay Soya Pvt. Ltd. v. Narayani Trading Company, granted an interim injunction restraining the defendant from using any marks deceptively similar to the plaintiff’s trademark and their copyright in artistic works. [March 9, 2021]
  • The Delhi High Court in Raaj Unocal Lubricants Ltd. v. Apple Energy Pvt. Ltd., restrained the defendant from using any mark deceptively similar to the plaintiff’s ‘UNOCAL’ mark and also restrained them from continuing a civil action in a Texas court, until next hearing. [March 8, 2021]

Other News from around the Country

  • Author Ashish Kaul who had filed a copyright infringement case against actress Kangana Ranaut for her proposed film on Didda, has sent a notice to Khar Police Station for swift action to be taken.
  • A Mumbai-based composer Joseph Mendoza has been accused of copying Singapore’s iconic national day song “Count On Me Singapore”.
  • An Indian indigenous neurosurgery simulator developed jointly by AIIMS Delhi and IIT Delhi has been granted a US Patent through the ICMR Patent Cell.

News from around the World

  • A piece in Bloomberg discusses the different stance taken by vaccine protectionists and vaccine free traders amidst the Covid-19 pandemic.
  • The Quadrilateral group of nations- the USA, India, Japan, and Australia, has announced a partnership to supply up to one billion Covid-19 vaccine doses by the end of 2022.
  • Canadian company, Biolyse, has sought license from Johnson & Johnson to manufacture their Covid-19 vaccine and has stated that it will take recourse to the compulsory licensing provisions if the license is not granted.
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  • YouTube has started rolling out a new tool called ‘Checks’ that will assess possible copyright violations and ad suitability restrictions before a video is uploaded.
  • Bangladesh intelligence agencies are suspected of getting content critical of the government from dissidents taken down by way of fake copyright infringement claims.
  • China’s top intellectual property body has rejected and condemned applications to trademark the expression ‘crystal clear love’ used by a Chinese soldier who died in the India-China Galwan Valley clash.
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