Recent Judicial Pronouncements In IP

The topical increase in the issues relating to infringement of the intellectual property has burdened the Courts to address these with the insistence on the regulatory framework provided and procurement of public trust. The Intellectual Property (IP) can be bifurcated into categories which include- patents for inventions, copyrights for literary works, trademarks and trade secrets. For bringing progressive changes in the free market, liberalization of the international trade practices and commitments to the World Trade Organization (WTO) under the Trade Related Intellectual Property Rights (TRIPS), Courts delve upon progressive aspect for attaining paradigm shift in creation, promotion and protection of such rights in consonance to the public policy which would be pondered upon in following judgments:

The Court in the exercise of its inherent power passed a summary judgment in the matter, Galderma S.A. v Velite Healthcare wherein the reference has been made to the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015, in the Trademark infringement suit. The Plaintiff used the CETAPHIL trademark for its range of skin care products which bears a unique trade dress with a distinct layout. The mark of defendants’ CETAVEL was objected by the Registrar of Trade Marks for reasons of similarity and because the defendant’s products were sold in similar packaging. The Court in this regard opined that the plaintiff was entitled to the decree under Order XII-A of the Commercial Courts Act, which empowers the Court to pass summary judgment without recording the evidence is apparent that defendant has no prospect of defending the claim. The Court thereby granted the permanent injunction in this regard against the defendants’ illegal use of Galderma’s trademark which in manner proved to be apt for expeditious disposal of cases.

The High Court of Bombay in the recent copyright infringement case of Trimurti Films Pvt. Ltd. vs. Super Cassettes, restrains the release of the film Baadshaho as it contained the similar version of the song ‘Keh Du Tumhe’ which was originally from the movie Deewar, the rights of which are owned by Trimurti films. The argument made by the company provides that through Universal Music Pvt. Ltd. has been granted restricted right to make and sell the gramophone records but the rights to use sound recording still persists with them. The Court in the matter opined that the makers of the film had no right to use the prescribed song in their movie to which the party approached the division bench which rendered the same decision thereby not obstructing the previous judgment.

Further, in the case of Impresario Entertainment & Hospitality Pvt. Ltd. vs. M/s. Urban Masala LLP, Hon’ble Justice Manmohan (Delhi HC) rendered interim injunction in favor of the Plaintiffs restraining the opposite party from manufacturing, selling, marketing, advertising and/or offering its services or permitting third parties to use the trade mark SOCIAL. The Court observed that prima facie case of infringement and passing off is made out and that the balance of convenience lies in the favor of plaintiff and it would cause irreparable harm to the party if such interim injunction is not granted. The Court further dwelled upon the aspect that the word ‘Social’ is arbitrary in regards to restaurants and terming it under the generic category would br prejudicial to the party which owns such mark.

The recent case of Indian Singers Rights Association (ISRA) vs. Chapter 25 Bar and Restaurant dealt with the issue of performers rights wherein the Court delved into the interpretation of the term ‘performer’ which under the ambit of Copyrights Rules provides for recording of visuals or acoustic presentation of the performer. The analytical framework adopted in this matter included analysis of the exclusive rights such as to make a recording of performance including its communication to the public for which they shall be entitled to the royalties for commercial activities. The Court ruled in the favor of ISRA after deliberate interpretation of Section 39 A (1) of the Act and allowed permanent injunction thereby ordering the Defendants to render accounts of all monies earned from the performers comprising of its members and fined them with Rs. 20,000 to be paid to ISRA. Though, these judgments have been appealed before the Division Bench of Delhi HC not by the original defendants but by the Saregama on grounds that it is an affected party since ISRA was in effect seeking to enforce rights that belonged to it. The Court had directed the parties to submit their proclaimed ownership of performers’ rights and to maintain the accounts of sums that ISRA had collected for further hearing in October.

The Delhi HC further in the case of Neetu Singh vs. Rajiv Saumitra, clarified the aspect of Section 17 of the Copyright Act for dealing with the issue pertaining to ‘employment’ in the said section. The suit was filed for restraining the Defendants from reproducing/selling the literary work ‘English for General Competitions’ featuring Plaintiffs’ artistic work. The Defendants argued that the opposite party is not the exclusive author of the books and relied on admission by Plaintiff wherein she has demanded salary from the coaching center to be an employee. Plaintiff whereas argues that there was no contract of service between the two parties and that the copyright registration serves as prima facie evidence in the matter. The Court relying on the contentions held that in absence of an agreement, Plaintiff owns the copyright in the works. It was further interpreted that when ownership of a copyright is disputed between an employer and an employee, the terms of employment of the employee to be pondered upon determining that the work was created for the employer to claim ownership over the same.

LANDMARK JUDGMENTS

There have been instances where the decisions rendered by the Court on issues relating to the infringement of the intellectual property rights had assessed in development of IP regime which endeavored to balance the monopoly rights and free access to knowledge and thereby safeguarding the interest of the innovators who holds the key to processing such creation. The judiciary has made robust progress for bringing this regime to the international standards which would be reflected through following judgments:

The case of Roche vs. Cipla observed a landmark patent infringement battle between the Swiss Multinational Healthcare company (Hoffman-La Roche) and Indian Multinational Pharmaceutical & Biotech Co. (Cipla) laid down standards for infringement suits wherein Roche claimed that it has been granted patent for ‘Erlotinib’ (lung cancer drug) which was sold under name Tarceva and that Cipla launched the generic version of this drug thereby infringing its patentability. The Court observed the evidence which included medical and clinical evaluation of the product and compared the alleged infringing product with the claims of patent itself. The judgment was rendered under Section 8 of the Patent Act which states the disclosure requirement as to all corresponding foreign patent applications and thereby Cipla was made liable for manufacturing and sale of Erlocip and decreed costs in favor of Roche amounting to Rs. 5 Lacs. This verdict had though put the Indian generic pharmaceutical companies at a disadvantage, however, the Court did not grant permanent injunction on the manufacturing of Erlotinib which entailed strong enforcement of the IP regime favoring the home companies in this manner.

Further, in the case of Ericsson vs. Micromax & Ors., the Court observed an , wherein patent infringement suit was filed by Ericsson against Microsoft and Intex alleging that the SEPs (Standard Essential Patents) held by it in the 2G/3G devices have been infringed. The opposing parties whereby filed complaint with CCI alleging that Ericsson was abusing the dominant position by not adhering to the FRAND terms and extracting excessive royalties in spite of being bound by the ETSI property rights policy. In furtherance to such allegation, Ericsson filed writ petition in the Delhi HC against the order of CCI u/s 26(1) directing the DG to investigate allegations of anti-competitive practices. It was argued that CCI has no jurisdiction over the allegation on royalty as case falls under the ambit of Patents Act. The Court after deliberated considerations held that CCI can advance investigation into the Ericsson’s apparent anti-competitive practices and also mentioned that in instance of irreconcilable inconsistency, the Special Statute would over-ride the general provisions.

The Court in the case of Eastern Book Company vs. Navin J. Desai & Ors., pondered upon the issue of ownership of copyright of the court judgments that were published or reproduced. The EBC, filed suits for permanent injunction restraining infringement of copyright, moral rights, unfair competition, damages etc. against the respondents. The Supreme Court ruled that minor editing or grammar check could not give anyone copyright over the judgments and that copyright would be granted only in matter where the work has some skill, labour as well as a minimal level of creativity in itself. The Court granted interim relief to the Supreme Court Cases (SCC) whereas directed the respondents to refrain from copying the headnotes, footnotes and editorial notes of the SCC.

The issue pertaining to pending litigation for years was resolved by the Supreme Court in the case of Bajaj Auto Limited vs. TVS Motor Company Ltd., wherein the direction rendered to all courts in India provides for the . The patent dispute over the use of the twin-spark plug engine technology was argued for more than 2 years and that also for temporary injunction to which the Court intervened and directed that the matters relating to trademarks, patent and copyrights ought to be proceeded on day to day basis. Further, reiterate that the Courts after deliberate considerations should give the final judgment within four months from the date of filing of the suit.

The foremost decision rendered by the HC on the protection of IP rights on the internet was in Yahoo! Inc. vs. Akash Arora & Ors. whereby it was held that the domain name served similar function as that of a trademark and therefore to be entitled to equal protection. The defendants’ Yahoo India! was identical to the plaintiffs’ domain which would create confusion in the minds of the internet users that these names had a common source. The defendants whereas argued that they had put a disclaimer on their site pertaining to uniqueness to which Court held that where disclaimer would not be sufficient as the name Yahoo had acquired uniqueness and distinctiveness in the market and deemed to be associated with the plaintiff thereby rendering the decision in the favor of the plaintiffs.

Further, delving upon the interpretational aspect of Section 3 (d) of the Indian Patent Act, 1970, the Apex Court in the case of Novartis vs. Union of India, rejected the application of Novartis to patent one of its drug ‘Gleevec’ wherein the rationale behind rendering such decision was that there was no invention of a new drug rather a mere discovery of an existing drug. The Court also considered principles governing novelty, inventive step and enhanced therapeutic efficacy resulting from incremental changes to the existing drug. This was further enhanced in discussion as the ascertainment of the issues in the matter goes beyond the technicalities, into the attempt of such companies aiming to evergreen their patents for making it inaccessible at nominal rates consequently result in profit maximization for the concerned pharma companies.