Intellectual Property Rights (IPR)

The Intellectual Property Rights (IPR) provides for regulatory framework to safeguard the interest of the entities indulged in creativity and innovation for which it has been bifurcated under protections such as- patents for inventions, copyrights for literary works, trademarks and trade secrets. The Government in pursuance of this shift announced IPR policy which would be in compliance with the global norms ensuring credibility with the potential investors and strategic partners for encouraging them to invest in India. This newsletter aims to include the latest updates in the IP segment and recent statutory developments in this regard for creating awareness among all sections of the society about the economic, social and cultural benefits of IPR. The protection of such property can only be provided through well-defined laws which balance the interests of the public with those of owners. This would commercialize the scope of such brands through digitization of government filings thereby reducing the process of registration. The strengthening of enforcement and adjudicatory mechanisms would require the involvement of various agencies coordinating with the IP owners for avoiding such practices of piracy and infringement if rights. The judiciary in this regard has made robust progress for safeguarding the rights of innovators and bringing this regime in consonance to the international standards.

Paradigm Shift- Patent Granted Within 9 Months of Requesting Examination

The process of granting patents usually takes elongated time, as the product/process needs to be examined which is followed by filing of reports, hearing of parties, written submissions etc. However, the Indian Patent Office (IPO) has brought about a paradigm shift in the procedure by granting patents under the expedited examination system as provided under Rule 24C of the Patent Amendment Rules, 2016 which provides an interval of 9-12 months for such grant. The process in question was regarding the preparation of Apixaban for which request was filed on 24th October, 2016 and as a result of expedited provision, the patent was granted to Optimus Drugs Private Limited within 9 months of the filing of request. This entails the proactive approach on part of the authorities while acknowledging the rights of intellectual property.

Trending Court Orders – Service of Summons Via Whatsapp

The Delhi High Court in the recent case of Tata Sons vs. John Doe allowed the use of social network platforms for service of summons to the Defendants through Whatsapp as it could not be completed at their addresses for reason of unavailability of the parties. The allegations were pertaining to sending derogatory and defamatory emails against a senior executive of the Tata Company. The Court in this regard had earlier ordered the Internet Service Providers to reveal the identities of these persons and granted permanent injunction against the circulation of such content, blocking such email ids. This has revolutionized the process of serving summons as the parties need not wander for availability of the opposite party as through Court permission it could now be done through such social platforms assessing the speedy completion of Court proceedings.

Summary Judgments- High Court Exercising Its Inherent Powers

The Delhi High Court while exercising its jurisdiction under the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 has granted summary judgment in suit for counterfeiting and passing off a trademark. In the case of Ahuja Radios vs. A Karim, the Court restrained the Defendant from selling the audio equipments using the AHUJA or any other such deceptively similar marks. The Defendants on the inquiry by commission argued not to have knowledge of the products seized and claimed contrary to initial statements. The Defendants had no grounds for resisting the decree of injunction on which basis the Court passed a decree for permanent injunction in summary disposal of the suit. Further, in other such case of Galderma S.A. vs. Velite Healthcare, dealing with the trademark infringement suit, the Defendant’s use of the mark CETAVEL for skin care products was infringing the Plaintiffs’ unique trade mark CETAPHIL having distinctive layout, which was also objected by the Registrar of Trade Marks. The Court opined that the Plaintiff was entitled to the decree under the ambit of Order XIII-A of the Commercial Courts Act, which empowers the Court to summarily pass decision without the requirement of recording evidence if prima facie that Defendant has no prospect in the claim.

Technical Experts- Significance In Patent Matters

The High Court has recently in its judgment in the case of F. Hoffman-La-Roche Ltd. vs. Dr. Reddy’s Laboratories Ltd. & Anr., acknowledged the significance of Technical Experts in Patent Infringement lawsuits. The findings of the Court include following considerations:

• An expert cannot give evidence beyond the scope of the pleadings;
• Such an expert would remain witness of the party litigating and whom the opposite party has the right to cross examine;
• When documents are to be filed, the technical expert would prepare a report not necessarily in the form of an affidavit;
• The onus of invalidity of the patent was put on Defendant who was required to lead evidence on that issue in the first instance.
• The Bench further recommended the pertaining case to the Chief Justice for referring it to the Rules Committee (under Section 123 of CPC) for framing of rules as to conduct and procedure with respect to proceedings.

The matter was pertaining to patent infringement of a drug for which affidavit filed by an expert witness was filed by the Defendant with documents in support of the claim, wherein the court sought the interpretation of the procedural aspect and the requisite technical advice on such drug patent related matters for adequate findings and on basis of such report to render such decision.

Mimicking Domino’s- Can’t Serve Pizza Anymore

The Court while rendering its decision in the illegal use of Dominos’ brand discovered that the Defendant’s Dominozz Pizza has been indulged in copying various elements of its brand for commercial purposes. In the case, Dominos IP Holder LLC vs. Dominozz Pizza the renowned mark of the largest chain of restaurants was used by the Defendant damaging its reputation thereby affecting the goodwill of the brand. The investigation reports suggested that they had copied the red and blue color of the brand which had a distinctive layout and even endorsed it on the social media platform creating confusion in the minds of the consumers. The Court in this regard opined that there was prima facie infringement of the trademark resulting into irreparable losses and thereby granted injunction on further enhancement of this mimicking restaurants’ business.

‘Keh Du Tumhe’- Trimurti Claimed Copyright Infringement

The copyright infringement case of Trimurti Films Pvt. Ltd. vs. Super Cassettes, witnessed the similar version of the song ‘Keh Du Tumhe’ in the film Baadshaho which was originally in the movie Deewar for which Trimurti Company argued that such restricted rights have only been granted to Universal Music Pvt. Ltd. and that too for selling the gramophone records. The Court after requisite considerations opined that the film makers had no right to use the prescribed song in their movie to which the party approached the division bench, but same decision was rendered by the bench not obstructing the previous judgment thereby shifting the date of release. These copyright infringements in the digital marketing are on the rise for which Courts have adopted adequate mechanisms for securing the rights of the original makers in consonance to the public policy adoption of stringent framework has also been suggested.

Ignio- TCS Taking Leap in Artificial Intelligence Product

Tata Consultancy Services (TCS) has created an Artificial Intelligence (AI) product brand- Ignio for which a US Company was hired to drive the sales of the standalone product as it would be having separate website having minimal TCS branding. The company aims to target those users to which it has not been associated as a service provider thereby developing large array of network. The product would be used to detect and prevent potential hacks and security threats to their systems. The other factors include development of cognitive systems that continually learn and have the ability to make reliable and safe decisions based on masses of data and gaining the trust of the users.

Pro Kabaddi League- ISRA Claims Royalties

The Indian Singers’ Rights Association (ISRA) had filed for infringement of the performers’ rights wherein their claim was substantiated on the claim for royalties for music played during the League matches without prior approval and clearance from the authorities. The Court in this manner accepted the submission made by both the parties and held that considering the previous issuance of rights to ISRA in case of Indian Singers Rights Association (ISRA) vs. Chapter 25 Bar and Restaurant, the defendants (Mashal Sports) were directed to deposit a sum amounting to Rs. 5 Lakhs, as royalty with the Registrar General of the Delhi High Court. Further, if such order of depositing the royalty in court was not complied with then the party would have to suffer an injunction.

Design Piracy- Fashion Industry Turned to IPR Protection

Fashion industry has evidently turned to IPR, safeguarding their copyright designs before the India Couture Week organized by Fashion Design Council of India (FDCI) whereby for the reasons of lack of precedent in issues relating to design piracy it ought to be assumed that only obvious/identical imitation with minor differences would be considered under its ambit. The significant expansion of the fashion industry has led to fashion events being organized showcasing talents of domestic designers but it somehow resulted into imitation of the original designs. The socially imperative and flamboyant culture has made this industry an indispensible part of our modern life which thrives on innovation and improvement but blatant infringement of the novel creations led to unauthorised appropriation of artistic work. The creative conscience thereby needs to be protected through strategically managing such piracy issues by implementing stringent laws for safeguarding the transition in this industry.

IP Exchange- Joining The League

India will soon be joining the likes of Hong Kong and United Kingdom as it has been proposed by the Ministry of Science and Technology through National Research Development Corporation (NRDC) for setting an IP Exchange, where individuals and commercial entities both in India and overseas will be able to buy and sell IP rights across various sectors. However, the practical ramifications of such implementation needs to analyze that this process should be transparent and simplified for the users. Further, the merging of Copyright Board and Intellectual Property Appellate Board (IPAB) for fast tracking the approvals and the creation of awareness cell for IP promotion management would certainly be assessing the process for setting up such exchange

Yahoo! Inc.- Protecting IP Rights on Internet

The Court in the case of trademark infringement held that the domain name served similar function as that of a trademark and therefore be entitled for equal protection. The defendants’ Yahoo India! was identical to the Plaintiffs’ domain which created confusion in the minds of the internet users as these names had a common source. The Defendant argued for disclaimer on their site pertaining to uniqueness to which the Court held that a disclaimer would not be sufficient as the name has acquired uniqueness in the market. Such practices have been termed as cyber squatting which refers to the bad faith registration of a domain name containing another person’s brand or trademark in a domain name. Earlier, in the case of Yahoo! Inc. vs. Sanjay Patel & Ors., the Court has granted damages amounting to 3.2 million to the Plaintiffs and also permanent injunction restraining the Defendants from manufacturing, selling and propagating in any manner such trademark.

In-built Security Mechanism- Primary Evidence of Infringement

Dassault System approached the Delhi HC against unlicensed version of its CATIA software for which infringement report was filed and the Court held that a prima facie case in favor of grant of ad interim injunction had been made out and the balance of convenience lied in favor of Dassault. Thereby, the Defendants were restrained from copying, reproducing, storing or installing pirated version of the software. This case has made a huge leap in the jurisprudence of software piracy reducing secondary evidence. The infringement damages for software should be determined in perspective of escaping liability and punitive damages be granted in this regard to be ascertained in the manner of profit margin relying on probabilities of monopoly and externality factors.

Taj Mahal Palace- First Privately Owned Hotel In India To Receive Trademark Registration

The Indian Hotels Company Limited has been granted the protection for the Taj Mahal Palace by the Registrar of Trademarks as an image work. The first privately owned hotel to reach this milestone of receiving trademark protection for its architectural design which stands still even after the unfortunate terrorist attacks. This decision has rendered the hotel access to the club of iconic buildings which have been granted trademark protection such as Eiffel Tower in Paris, Empire State Building in New York and Sydney’s Opera House. The trademarks are assigned to company brands, entities which indulge in providing goods or services in order to protect them from those entities which seek to use their goodwill and brand recognition. This intends to protect the Taj Mahal Palace as the building structure is recognizable that anyone attempting to replicate or use it for commercial use would be restricted. The usage of the images of the Taj Mahal Palace for commercial purposes would be scrutinized and be restricted without paying company the license fees. The Hotel has preceded the famous Gateway of India, finding itself on the crossroads of the history where Lord Mountbatten announced the independence of the country from its steps. This has been the triangulation point for the Indian Navy to guide them to the harbor, a benchmark for Indian hospitability.

Damages Against Unlicensed Broadcasters- Safeguarding Creative Artists

The Court in the case of Super Cassettes Industries Ltd. vs. TG Angles Pvt. Ltd., granted damages amounting to Rs. 21 Lakhs in damages against the television broadcasters for making unlicensed use of music in its broadcasts without the payment of royalties. The interpretational aspect of the creative work was taken into consideration to which Court opined that it is posing a grave threat to the entire creative business whereas also affecting the business of the Plaintiff. Super Cassettes, a music company engaged in the management of the musical works of the T-series brand observed that there has been unlicensed usage of their music, upon which the initiation of the proceedings, though they agreed to refrain from making further unauthorized use of the music but refused further to render the accounts and the information regarding the music used in their broadcasts and neglected the arrears for payment of the royalties. The Court considered the matter and after prolonged discussions rendered its decision that the Defendant through its conduct had confirmed its intention for not paying the license fees for which this Court is directing it to pay damages amounting to Rs. 21 Lacs and further order a permanent injunction in this regard restraining it from publishing the copyrighted works of the Plaintiff and infringing its rights.