Here are our summaries of the blog posts published last week along with the summaries of some interesting orders from different courts. Anything we are missing out on? Please drop a comment and let us know.
Highlights of the Week
Assessing the constitutionality of the government’s move to appoint nodal officers to curb film piracy, Yogesh argues that the move violates the Right to freedom of speech and expression under Article 19 and fails to incorporate due process of law under Article 21. Read on to know more!
SpicyIP Tidbit: Advocate Faces Music for Concocting a Fake IPAB Order!
Was there a fake document presented in court as a real IPAB order? DHC directs BCI to look into the matter. Illegalities and fact situations aside – yet another reminder that there is no official publicly accessible database of IPAB orders, after the site went down.
Other Posts
Webinar on “How Patent Monopolies on Biologics and Vaccines Work” [November 22]
Free Webinar on “How Patent Monopolies on Biologics and Vaccines Work”! We are pleased to announce that Third World Network (TWN) is organizing a one-hour discussion (with Q&A) on “How Patent Monopolies on Biologics and Vaccines Work” on November 22. The discussion will focus on the first chapter of the recent TWN and AccessIBSA paper- ‘Monopolies on Biologics, including Vaccines’.
Case Summaries
The Delhi High Court passed an interim injunction restraining the defendants from using the mark “Dailmytrip” for tour, travel and hospitality services, holding it to be deceptively similar to the plaintiff’s “Make my trip” marks.
Emerald Enterprises vs Emerald Valves Private Limited on 21 November, 2023 (Delhi High Court)
The Delhi High Court passed an ex-parte at interim injunction order restraining the defendants from using the mark “Emerald” for valves holding it to be deceptively similar to the plaintiff’s registered “Emerald” mark. Though the defendant’s mark was also registered, the court reiterated that the prior use of the mark has to be protected and the registration will not have any bearing.
Universal City Studios Llc. & Ors. vs Fztvseries.Mobi & Ors on 21 November, 2023 (Delhi High Court)
The Delhi High Court passed a “Dynamic +” injunction restraining 44 defendants and their mirror websites from exhibiting the plaintiff’s works, including the future works. The court directed the Dept. of Telecommunications and MeitY to issue blocking orders against the websites.
Muneer Ahmad vs Registrar Of Trade Marks on 17 November, 2023 (Delhi High Court)
The Delhi High Court set aside the impugned order rejecting the appellant’s application for registration of “Bharat” device mark. The respondent had rejected the application holding that the mark is devoid of distinctive character and is ineligible for registration under Section 9(1)(a) or 9(1)(b). However, the court held that the respondent did not consider the mark as whole and merely considered individual parts of the mark and thus set aside the impugned order.
Ms Sk Educations Pvt Ltd vs Sripati Bhushan Srichandan & Anr on 17 November, 2023 (Delhi High Court)
The Delhi High Court passed an ad interim injunction against the defendant, restraining them from using “Bachpan” as a word mark or a logo for play schools, holding it to be deceptively similar to the plaintiff’s “Bachpan” mark. The court held that use of “Bachpan” marks by the defendant even after the expiry of the franchise agreement between the parties results in likelihood of confusion and association as envisaged under Section 29(2)(c) r/w Section 29(3).
Glaxo Group Limited vs Naresh Kumar Goyal, Trading on 22 November, 2023 (Delhi High Court)
In this case a rectification petition was filed simultaneously with the suit alleging trademark infringement and the defendant took a defence of registration of the impugned mark in the written submission. Considering section 124, the court clarified that in such a case where rectification and an infringement suit are filed against the impugned mark, the rectification petition has to be decided first, before proceeding with the trial of the suit and listed the rectification for hearing on January 9, 2024.
Johnson & Johnson vs Pritamdas Arora T/A M/S Medserve on 22 November, 2023 (Delhi High Court)
The plaintiff alleged that the defendants are manufacturing counterfeit bleading management devices bearing its marks “‘Ethicon’, ‘Ligaclip’, ‘Surgicel’ and ‘Surgicel’. The plaintiff alleged that the defendants were repackaging expired products and selling them in the market. The defendant stopped appearing since October 7, 2021 and since December 2021, the matter has been proceeded ex-parte followed by issuance of bailable warrants against the defendants. Considering the above, the court shared the passport number, Aadhar no., PAN and GST numbers of the defendants and directed the Delhi Police, Bureau of immigration, UIDAI, GST Dept. IT Dept. to place a fresh status report on the whereabouts of the defendants- Mr. Pritamdas Arora and his wife Ms. Ritika Arora.
The Court held that the defendant’s mark “Abbzorb” is deceptively similar to the plaintiff’s “Abzorb” mark. Though the defendant’s mark was also registered, the court held that the defence of registration of the impugned mark (u/s 30(2)(e)) will not arise in a case where the marks are registered under different classes. Furthermore, the court held that once the defendant was intimidated about the plaintiff’s mark under class 5, in the FER, they should have ensured to not use a deceptively similar mark and since the defendant still chose to use the impugned mark, they should face the consequences.
M/S Malhotra Book Depot vs M/S Mbd Industries And Anr. on 22 November, 2023 (Delhi High Court)
The dispute was over the use of the mark “MBD” by the defendants which was alleged to be similar to the plaintiff’s “MBD” mark. The plaintiff engaged in publishing business whereas the defendants engaged in the business of road construction. Over the course of mediation hearings, the parties agreed that the defendant will modify its mark to “JMVD” however, the plaintiff still pressed for damages. The court, considering the different sectors in which the parties operate and repeated adjournments sought by the plaintiff, held that plaintiff cannot have an objection to the defendant’s use of the “JMVD” mark and allowed the defendant to continue using it.
A writ petition was filed by the plaintiff alleging that reasons for orders passed by the trademarks office accepting or directing advertisement of a mark are not made publicly available. The respondent stated that the reasons are given in an internal note sheet which can be accessed by filing an RTI. However, the court relied on the orders passed in Jai Bhagwan Gupta v. Registrar of Trademarks and Kaira District Cooperative Milk Producers Union Ltd and Another v. Registrar of Trademarks and Others to hold that a brief order must be passed while accepting or rejecting a mark and that cannot be regarded as an internal note sheet. The court further directed that this order should be made available on the online portal of the Registry and in case it is not uploaded, a copy should still be shared upon request by an email.
In this case the defendant is accused of infringing the plaintiff’s copyright by modifying the source code while servicing the plaintiff’s software. The plaintiff argued that the source code is a part of the software and altering the source code would amount to adaptation of the computer programme within the meaning of Section 14. The defendant sought sometime to respond and the court renotified the matter for December 12.
Filo Edtech Inc vs Union Of India & Anr. on 21 November, 2023 (Delhi High Court)
The Delhi High Court reiterated that an appeal against an impugned order by a Patent Office will lie before the High Court of the jurisdiction where the application was filed. In doing so, the court resorted to the reasoning of a coordinate bench in Dr. Reddy’s Lab v. Controller of Patents.
Scrum Alliance Inc vs Prem Kumar S & Ors. on 21 November, 2023 (Delhi High Court)
The Delhi High Court held that the defendant’s certification trademark is deceptively similar to the plaintiff’s “Certified Scrum Master” certification mark and passed an ex-parte ad interim injunction order restraining the defendant from using the impugned mark. The court compared the two marks and held that the marks are nearly identical. On the defendant’s argument that there is no likelihood of confusion, the court held that confusion has to be assessed from the perspective of a person who is familiar with the plaintiff’s certification mark. The court further held that the possibility of confusion is further exacerbated by defendant’s use of a similar sun motif.
Google Llc vs Makemytrip (India) Private Ltd. on 23 November, 2023 (Delhi High Court)
A division bench of the Delhi High Court will consider the question of whether an identical use of a mark as a keyword will attract the presumption of confusion u/s 29(3). The next date of hearing is December 12, 2023.
Google Llc vs The Controller Of Patents on 22 November, 2023 (Delhi High Court)
An appeal was filed against the impugned order rejecting the appellant’s patent application on the ground of lack of novelty and inventive step. The appellant argued that in the impugned order, the respondent has only considered teachings of one prior art and there are two main features of the invention which are not disclosed in the prior art. Earlier the court had directed the concerned official from the respondent’s office to appear before it. However, no one appeared on the concerned date and thus, the court listed the matter on December 13, 2023 directing the concerned officer to appear and explain how the application is hit by objections of novelty and inventive step.
Aero Club vs M/S Sahara Belts on 22 November, 2023 (Delhi High Court)
The Delhi High Court passed a summary judgement, decreeing the suit in favor of the plaintiff. The plaintiff alleged infringement of its “Woodland” trademark by the defendant. The court had earlier granted an ex-parte interim injunction and directed for execution of a local commission. Considering the report of the local commissioner and the plaintiff’s arguments, the court held that the defendant is selling counterfeit products and accordingly imposed damages worth INR 10 lakhs along with INR 1 Lakh as costs on them.
Apollo Hospitals Enterprises Ltd. v. Dr. Dheeraj Saurabh on November 20, 2023 (Madras High Court)
In a trademark infringement suit filed against the defendant’s use of “New Apollo” mark, the Madras High Court recognized “Apollo” as a well known trademark. The court also analyzed Section 11(6), Section 2(1)(zg) and provisions of the Trademark Rules, to clarify that the power to recognize a mark as “well-known” are concurrently vested with the Registrar and the Court.
Other News
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- Source: https://spicyip.com/2023/11/spicyip-weekly-review-november-20-november-26.html
