April 4, 2021
IPR Newsletter- February & March 2021
Transferring the IPAB Jurisdiction to commercial courts! Will it ensure speedy justice?
A draft bill has been introduced in the Lok Sabha which proposed to close down the Intellectual Property Appellate Board (IPAB) for good. The Tribunals Reforms (Rationalisation and Conditions of Service) Bill, 2021 proposes to transfer its powers in copyright matters to Commercial Courts and all its other powers to High Courts. This bill comes in pursuance of the 2021 Union budget seeking the government’s objective to reform the tribunal system to ensure speedy justice. The bill also mentions reasons for shutting down the IPAB which includes that data collected over the last three years shows that these tribunals don’t necessarily lead to faster delivery of justice like they were meant to. The paragraph for reasoning also mentions that the tribunals were failing to reduce work load of High Courts as many cases do not achieve finality at the level of tribunals and are usually adjudicated further in High Courts and even in the Supreme Court.
K S & Co Comments
The bill will definitely be of great help by reducing a layer of litigation for parties at dispute, and the government will save huge amounts of monies that would have otherwise been spent in the form of administration and infrastructure costs. It has been keenly observed that there is a shortage of shilled supporting staff to help the running of these tribunals and infrastructure. But cutting out these tribunals altogether, will lead to a significant increase in the workload of the High Courts.
During a copyright infringement suit in the Bombay High Court between Sanjay Soya Pvt. Ltd. vs. Narayani Trading Company, Justice GS Patel observed that “Section 51, which speaks of infringement of copyright, does not restrict itself to works that have been registered with the Registrar of Copyright”.
It was also acknowledged that right to protection under the Copyright act exists from the moment the creation is complete, since it is meant to protect the creator from unlicensed use of his original works. The bench went on to explain that a court is bound by the decisions of the same or coordinate strength in the same way as it is bound by a larger bench and that the earlier decision always binds the later one. The subjects though will only be binding when there is a certainty with the provisions of law along with appropriate reasoning.
K. S. & Co. Comments
A man can be imprisoned for upto three years under this provision, which is the same punishment as offences under section 63 of Copyright Act (infringement of copyright) and section 103 of TM Act (false application of TM) which aren’t mentioned in the IPC.
The High Court of Bombay appointed an amicus curiae to assist on the point whether infringement of copyrights and trademarks would be a bailable or non-bailable offence. The Amicus Curiae cited provisions from the Cr.P.C. proving that any offence where a punishment may lie for more than three years shall be a non-bailable offence. Justice Sarang further developing on the advice of the amicus curiae said that in such offences where it is possible to impose a sentence of exactly 3 years, it would come under that provision and hence would be a non-bailable offence.
K S & Co Comments
Even though copyright infringement may have huge repercussions for the plaintiffs or the copyright owners, it is also essential to follow the law of the land. According to Cr.P.C. any offence where punishment is more than three years is a non-bailable office. While this decision and finding is based on the law of the land, it might help if the punishment is based on the gravity or degree of the infringement.
The central government recently approved the first Intellectual Property Rights Facilitation Centre (IPRFC) of Punjab to be set up in Ludhiana.
The main goal of this centre would be to educate the local business owners of micro, small and medium enterprises (MSME) about effective utilization of IPR tools. This centre will help train the locals formulate business strategies, to upgrade their technology and enhance their competitiveness. A member of the MSME board of India also highlighted many other benefits of having an IPRFC which include interactive seminars and workshops, that not only the city but also people from neighboring cities can attend and learn. The centre would also provide all the services required to search, select and register all forms of intellectual property and provide advisory services on the same.
K S & Co Comments
This is a great step by the government, and shall help benefit the local business owners of micro, small and medium enterprises. It is time that we utilize and make the most of our Intellectual Property Rights and educate the ones who are users & creators of the IP rights.
All the businesses of the Hero group were divided among 4 groups in the Munjal family in 2010 via a family settlement agreement. Vijay Munjal got Hero exports among other businesses while Pankaj Munjal got Hero Cycles among other businesses.
The settlement agreement also assigned to the family groups the right to use the trademark “Hero” and its variants to the exclusion of other groups. Vijay Munjal got the exclusive right to use the trademark “Hero” and “Hero Electric”.
The issue that arises now is that Pankaj Munjal started producing e-cycles under the company – Lectro E-Mobility, which is in direct competition with Vijay Munjal led company that produces electric scooters. Thus the present petition was filed by Vijay Munjal, to seek Delhi High Court’s intervention to restrain Pankaj Munjal from dealing in electric bikes having the “Hero” mark or any other deceptively similar mark.
The High Court directed both parties to resolve the dispute via Arbitration, as mentioned in the family settlement agreement.
K S & Co Comments
It is always disheartening to see family members have disputes over businesses developed by their forefathers. In today’s time with cut throat competition even among family members, it is best to safeguard each of your personal interests with detailed family settlement agreements with dispute resolution mechanisms. This will ensure that you don’t lose all the business in fighting amongst yourselves.
As of March, 2021 over 14,000 startups have filed for trademark applications under the Startup India Scheme. 46.5% of these applications have been registered already.
As per the DPIIT annual report the number of registered applications have been doubling year on year since 2018. But this number is only 0.8% of the total number of filled applications registered in India across all sizes of companies.
K S & Co Comments
Though it may seem like a small number in comparison to the total numbers of the nation, this increased growth in patent filing shows an increased understanding and education amongst the individuals of our nation about Intellectual Property rights which is a significant step in the right direction.
58 year old Mumbai based composer Joseph Mendoza has been accused of copying the song “Count on me Singapore” which was composed by a Hugh Harrison. The two songs are entirely alike, with the minor difference being the name of the country.
While “count on me Singapore” was performed in 1986, Mendoza claims that 250 orphans in Bal Bhavan, Mumbai performed his song “We can achieve” in 1983 and, while he only found out about Singapore’s national song a few days ago in 2021. He does acknowledge similarities in the song but stands his ground about not having any means of access to the song on this side of the ocean due to the lack of internet back then. Harrison took offence to Mendoza’s claim of being the original creator of the song, and threatened to sue for slander and/or libel. Singapore’s Ministry of Culture, Community and Youth took it on a relatively lighter note and ended their comment with “Imitation is the best form of flattery”.
K S & Co Comments
It is highly improbable that both parties independently came out with songs this similar, without taking any form of inspiration from the other. After the passing of so many years, one can only speculate.
A tiny, two-person startup in Coimbatore ‘Daily Basket’ has received a cease and desist letter from BigBasket, the self-proclaimed largest online food and grocery store in India. They claim that any mention or reference to the term “basket” in the name or logo of a company in the e-commerce business of related products would deceive the relevant class of consumers to believe that it is their brand.
K S & Co Comments
The term Basket is a relatively common word in the field of shopping and of edibles in general, but the company over time has created a reputable image in the market with this name and mark. The dispute shall be decided on the basis of the spectrum laid out in Abercrombie & Fitch Co. v. Hunting World, Inc. which describes what kind of marks would and would not qualify for protection.
Mondelez International is taking Parle Products to court over alleged infringement of their well known Oreo cookies. The maker of Oreo cookies in India claims that the design of Parle’s Fabio biscuits is deceptively similar to their cookies.
Oreo first entered the Indian market in 2011, while Fabio was launched in January 2020. The case has been filed in Delhi High Court by Intercontinental Great Brands LLC which is a unit of Mondelez International Inc. Though Intercontinental has asked for earlier dates, the court has fixed April 12 as the date for next hearing.
K S & Co Comments
The biscuit industry in India is a highly competitive market. This is not the first case of infringement in this industry and it will not be the last. Protecting your IPR is especially necessary in these competitive FMCG markets.
Back in October 2020, India and South Africa put forward a joint proposal to the World Trade Organisation to waive off the Trade-Related Aspects of Intellectual Property Rights on the Covid’19 Vaccines until most of the world has been vaccinated.
The goal of this waiver would be to enable free flow of medicines across states, to substantially reduce the cost of the vaccines, and to allow for easy technology transfer around the globe. This proposal managed to gain support from around 90 countries including the group of least developed countries (LDCs). But for the benefit of the developing nations, the developed countries and pharmaceutical industries would have to settle for lower compensation for their months of hard work and would lose billions poured into research and development of the vaccine. Recently, 164 member states of the WTO did meet on 25th February this year to discuss the possible waiver, but the meeting ended without consensus, leaving the poorer countries frustrated and the Patent protection intact.
K S & Co Comments
The Intellectual Property Rights of any company are important to make sure that the efforts they put in creating the products don’t go in vain. When in a situation like the present one, we see that everyone is in need of the vaccine and it will only be beneficial if everyone has access to it, one would imagine that free flow is necessary. At the same time, we cannot ignore the fact that Pharma giants and medical professionals, have invested huge sums of money and effort in times of high risk to give us these vaccines and taking away their opportunity to get something in return would not be fair.
In 2018, India had applied for a Geographical Indication tag for Basmati rice before the European Commission. This tag would indicate premium quality and help to fetch higher prices for the product that 65% of the EU imports from India.
The application was posted in the Official Journal of the European Union on 11th September, 2020 and soon after was opposed by Pakistan which accounts for the rest of the supply of Basmati rice to the EU. While India tried to explain that they haven’t filed for exclusivity, and that Pakistan can still continue to sell Basmati rice, a third leg has joined this dispute. Nepal still protects its GIs under their trademark law since they don’t have a separate provision for GI yet, but they have come out to oppose India’s GI claim. Pakistan who has already granted GI status to Basmati has also submitted a reasoned statement in opposition to the application, and is gaining significant attention from the EU authorities.
K S & Co Comments
What’s interesting to note here is that Nepal’s import of Basmati rice from India has been consistently increasing over the years, so the strength and basis of their opposition cannot be inferred. Only time will tell how this new dispute shall affect our already impaired relationship with our neighbors.
The YouTube studio app for desktop has recently updated their software to incorporate a new feature which would automatically conduct a copyright check search of the video to be uploaded on the video sharing platform.
This step was taken to reduce the efforts of YouTube and other copyright owners to regularly search the platform for infringements and to help other video creators make sure that their material is not infringing any works. This would hence reduce the number of videos being pulled down and of channels being banned.
K S & Co Comments
Copyright violation is a common thing on video sharing platforms today as there is new viral content everyday and a lot of creators want to ride the waves, by creating similar material. This step by YouTube may at first cause a decline in the number of daily uploads, but will drive up innovation of creators by forcing them to create original content.
Being the largest filer of international patent applications in 2020, with 5464 applications, Huawei has spent over $20 Billion in R&D in 2019 alone. This investment has brought them great results as they are today the largest technical contributor to 5G standards around the world.
They believe in the ideology that “The price must provide a return on investment while making the cost of implementation by the industry reasonable” which they have implemented while capping the royalty rates at a mere $2.50/- for each multi-mode 5G smart phone using its technology.
K S & Co Comments
Pricing their technology at such low rates is usually a mechanism to drive out the competition. But they can’t be sued for predatory pricing since they have actually managed to keep their costs low enough to make profit from such low rates. Though this may not have been done with an entirely noble cause, it will lead to great benefits for the world at large to move on to better standards, at cheaper rates.o
Entertainment One UK Ltd (eOne) is ecstatic about their victory in the Shanghai IP court, not only because the defendant was ordered to pay them damages for using the term “Peppa Pig” to sell his products but more so because of the fact that their cartoon character has now been recognized in the Chinese landscape as a well-known trademark.
They had only launched this brand in china a few years ago, and to already be recognized as a well-known trademark is a major success on the IP front especially because not many foreign-owned content brands manage to attain any recognition in China.
K S & Co Comments
China has always been a tough market for intellectual property rights and to see international brands get recognition and justice will definitely boost the morale of other companies planning to enter the Chinese markets.
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