It is reported that the Japanese government is planning to establish laws to keep patents with possible military uses secret and compensate the applicants for their lost income due to such secrecy.

Certain specifications of the said proposal can be described as under:

1. The proposed legislation shall assess patent applications for technologies that may aid in the development of nuclear weapons, such as uranium enrichment, as well as cutting-edge breakthroughs, such as quantum technology. Patents that pose a national security danger if made public will be kept secret, and applicants will be prevented from submitting in other countries.

2. The applications will be reviewed by a panel comprising of representatives from the Defence Ministry, the National Security Secretariat, and other agencies for preventing any possible abuse by foreign actors.

3. The Japanese government shall reimburse nearly 20 years of licencing revenue to the applicants to cover their losses faced due to the imposition of the secrecy directives which have been calculated to comprise of only 3% to 5% of revenue which the government shall receive from such secret inventions.

These measures by the Japanese Government will prove to be beneficial for their national security and defence mechanism. Once the legislation comes into force, the applicable inventions shall be saved from the public’s eye and won’t be accessible to any person within or outside the country, which may give the country sole authority over the invention.

The Patents Act, 1970 (hereinafter referred to as the Act), contains similar provisions for secrecy of certain inventions, since the inception of the Act in the year 1970. Therefore, it can be observed that Indian Patent Laws were ahead of its time during its inception. The procedure for application of secrecy directions as per the Act is as follows:

• Reason for imposition of secrecy directions: The patent application may belong to a class that the Central Government has designated as important for defence objectives, or it may be subject to the judgement of the Controller of Patents (hereinafter referred to as Controller).

• Notification of secrecy directions to the applicant: The Controller may notify a patent application (i.e. a patent application before the grant/refusal) as a secret under Section (35) of The Act. Post which the patent applicant is barred from disclosing or sharing information about the patent to any other party.

• Central Government review and decision: The patent application is then sent to the Central Government for review to see whether technical details of the patent should be made public in order to protect India's national interests or not. If the Central Government agrees with the assessment of the Controller, limitations on the patent application will remain in effect. The Central Government may order the Controller to relax the limitations put on the patent application if the Central Government believes that publication of the technical details of the patent application would not be detrimental to India's national interests. Furthermore, the Central Government on its own motion may also inform the Controller at any time before a patent is granted that the patent application is significant for defence reasons, and the Controller's directives, as indicated above, will take effect.

• Use of the secret patent by the government: When the secrecy directions are in effect, and the patent application is found to be in order for grant of the patent, the Central Government or any third parties designated by the Central Government may put the invention into usage, while treating the patent application as a granted.

• Compensation to the applicant: If the Central Government believes that the patent applicant suffered as a result of the secrecy instructions on the patent application, the Central Government may compensate the patent applicant adequately, by determining its uniqueness, usefulness, and purpose of the invention.

• Constant Evaluation of secrecy directions: The Central Government is required to evaluate the secrecy instructions every six months or upon request of the patent applicant under section 36 of the Patents Act, 1970.

The Indian Patent law also contains provisions of secrecy for certain inventions in its legislation since many prior years. However, it is difficult to assess the implication of the same. Neither does the compensation clause in The Act have any accountability nor does it have any specifications in terms of compensation being provided to the applicants, thus making it uncertain. It is important to understand that while the interests of the public at large must prevail at times, the private individual should be treated fairly.

A Copyright is an exclusive right granted to a creator of an original work to reproduce his own work or authorise reproduction of the same to others for a fixed tenure after which the copyrighted work falls into public domain.

As per the Copyright law of the United States (hereinafter referred as ‘the USA’), a copyright is protected for 95 years from the date of first publication. However, copyrighted works published in the USA after January 1st, 1978 are protected for the author's lifetime plus 70 years. Further depending on whether or not the work was of “work-for-hire” nature or created by a corporation, the term may change as well. However, works published before January 1, 1927 (other than sound recordings), have already made their way into the public domain.

A.A. Milne, the author of the book ‘Winnie the Pooh’ had published the book in 1926. As a result, the legendary characters from the book namely, “Winnie the Pooh”, “Piglet”, “Kanga”, “Owl”, “Eeyore” have entered the public domain as of 1st January 2022 and therefore are not under copyright protection anymore. However, the character "Tigger" who first appears in the novel in 1928, happens to be still protected by copyright for another two years.

*We claim no copyright rights in the above image. It has been used for representational purposes only.

Moreover, Milne's original text, as well as the characters he created, are available for free use. However, it does not mean that anyone may exploit the concept of ‘Winnie the Pooh’ artistically or commercially as Disney stills owns the copyrights for all the subsequent versions of the ‘Winnie the Pooh’ characters. In 1961, Disney had purchased the licensing rights of ‘Winnie the Pooh’ from Stephen Slesinger, New York television and film producer who had obtained the rights from Milne himself in 1930. By the virtue of purchase of the licensing rights, Disney’s subsequent versions of ‘Winnie the Pooh’ characters are under copyright protection for years to come.

Authors and companies may reproduce, reprint or alter the original content by A.A. Milne with minor restrictions. However, any additional adaptations or merchandising of items may constitute to be infringing on the existing copyright rights owned by Disney.

As per reported in the New York Times, Disney has earned around $5.5 billion in revenue from its Winnie the Pooh merchandise.

Other notable books that entered the public domain at the start of the year include Ernest Hemingway's "The Sun Also Rises," T.E. Lawrence's "The Seven Pillars of Wisdom," which was later adapted into the film "Lawrence of Arabia," and Felix Salten's "Bambi, A Life in the Woods," which Disney adapted into the film "Bambi."

Consumers tend to recognize their preferred brand labels as a whole and not in broken fragments. This has been the view of Courts generally while hearing disputes relating to similar trademarks are brought before the court. However, a divergent view was taken by the Delhi High Court in the case of of Hamdard National Foundation & Anr. vs. Sadar Laboratories.¹

Hamdard National Foundation (hereinafter referred as “Hamdard”) filed a trademark infringement suit against Sadar Laboratories (“Sadar”) for using the mark “Dil Afza” under class 32, for the purpose of manufacturing and selling sharbat, which is deceptively similar to Hamdard’s popular sharbat “Rooh Afza”.

Hamdard has a duly registered mark Rooh Afza under class 32 for selling fruit drinks.. It claimed that its product is “unique in its colour combination, layout and features, with a specific floral arrangement on the bottles”. Hamdard has been selling Rooh Afza sharbats since August 1942 and claimed that it has now obtained the status of a well-known trademark. Hamdard claimed that Sardar is deceptively selling sharbats under a similar mark – Dil Afza. Hamdard has further claimed that, Sadar claims to have been in the use of the mark Dil Afza since 1949, however, no documents to that effect have been put on record.

On the other hand, Sadar contended that both the marks Rooh Afza and Dil Afza have co-existed peacefully under class 5 (pharmaceuticals) where the parties have been involved in the selling of medicines and there has been no confusion amongst the consumers. Therefore, Hamdard’s claim that the sale of sharbats under the same name would create confusion must be set aside. Sadar also explained that its label is distinct as it bears fruits and the bottle bears a brown cap as opposed to the flowers and yellow cap used by Hamdard.

Source- https://www.legaleraonline.com

*We do not claim any copyright in the image used. It has been used for academic and representational purposes

The Delhi High Court Bench considering the claims of Hamdard observed that the goodwill and reputation of Rooh Afza cannot be overlooked. However, while siding with Sardar, the Court held that accepting the marks in question to be identical “would be taking an extreme position”. The Court then went on to bifurcate the mark Rooh Afza into “Rooh” and “Afza” and stated that the term “afza” cannot be associated only with the product of Hamdard and hence, Sardar could not be restricted from using such a word for its label since no separate registration for the words “Rooh” and “Afza” had been filed for by Hamdard.

The Court also went on to consider Sadar’s contention that there was no confusion with respect to the terms being used in the pharmaceutical front, and held that Sadar has been using ‘Dil Afza’ for Unani medicines from at least since 1976, even then, for such a long time in the field of a more sensitive market of medicine, apparently, there has been peaceful co-existence with no confusion arising in the minds of the consumers. Therefore even if the sharbat has been produced only since 2020, no case has been made out to restrain Sadar from marketing its sharbat under the name ‘Dil Afza’. The claims made by Hamdard would have received a green signal, only in the situation where either the words “Rooh” and “Afza” were registered simultaneously, or Sadar was involved in selling its products under the label “Rooh Afza” as a whole.

Presently, a rectification suit has been filed by Hamdard claiming non-disclosure of facts before the Trademark Registry and the same is currently pending. The Hon’ble Bench has observed that presently no interim injunction shall be awarded in the matter while ordering Sadar to submit their accounts and quarterly reports for the purpose of record until the disposal of the suit, which shall take place after the disposal of the rectification suit filed by Hamdard.

¹Hamdard National Foundation (India) & Anr. vs. Sardar Laboratories Pvt. Ltd., CS (Comm) 551/2020.

Reckitt Benckiser India Private Limited, (“RB”) an internationally renowned company involved in the manufacture of the famous toilet cleaner “HARPIC”, is the registered proprietor of the word mark ‘HARPIC’ in class 3 bearing registration No. 347055 dated 15.03.1979. RB has also filed applications for registration of the unique and distinctive bottle shape of its HARPIC branded products in India in classes 1 and 3 and the applications for their trademark registration are pending before the Trade Marks Registry.

Hindustan Unilever Limited (“HUL”), a consumer goods company, introduced its toilet cleaner ‘DOMEX’ in India in 1997. In 2015 – 2016, it came up with a unique technology which helps in making the hard surfaces such as that of a toilet bowl, hydrophobic by using a chemical compound called Silane. Due to the novelty of the said technology in its product ‘Domex FreshGuard’, it contains patented technology for Hard Surface Treatment Composition under Patent No. 368377.

HUL launched five advertisements including a television commercial (hereinafter, TVC), print advertisement and YouTube videos which as a general theme implied that the use of HARPIC leads to bad odour and that HUL’s product is of superior quality.

The present case, before the Hon’ble Delhi High Court, deals with a suit filed by RB against HUL for injunction under Order 39 Rules 1 and 2 of the Civil Procedure Code, to restrict and prevent the HUL from denigrating and disparaging the goodwill and reputation of the RB’s trademark ‘HARPIC’ and restrain it from broadcasting the impugned advertisements which defame and vilify the plaintiff’s product.

Screenshot of the TVC

*We do not claim any copyright in the image used. It has been used for academic and representational purposes.

The TVC showed a child questioning his mother who was buying HARPIC and casting a shadow on the efficiency of the product. HUL’s toilet cleaner was then shown as an alternative to the same. It was contended by RB that the TVC makes false assertions which clearly ridicule the use of RB’s product and nudges consumers to shift their preference to Domex instead. HUL claimed that the statements made in its TVC were completely true and there was no disparagement of RB’s product.

Fifth advertisement

*We do not claim any copyright in the image used. It has been used for academic and representational purposes.

The third advertisement directly made a comparison between the two products which was alleged to be defamatory. With regards to the second, fourth and fifth advertisement, the use of the clearly identifiable Harpic bottle and the implication that it’s an ‘ordinary toilet cleaner’ was disputed by RB. HUL denied the claim and stated that there was no reference to RB’s product and it was a rough rendering of a generic shape of a toilet cleaner bottle.

FINDINGS

The Court relied on a catena of judgements and clarified that the general legal stance is that in comparative advertisements, one must not make misleading or false assertions which defame the goods of the competitor and make them seem inferior. However, the Court conceded that within the ambit of the grey area, comparison of goods and establishing superiority is permissible and the overall effect and intent of the advertisement need to be assessed.

It was held that a holistic look of the TVC shows that it does not intend to denigrate RB’s product but only seeks to show that the defendant’s product, DOMEX is a better solution on account of its patented technology. It was reiterated that a plaintiff must not be hypersensitive as commercial speech, a part of Article 19 of the Constitution of India, gives certain room to the advertiser to play around in the advertisements.

The Court also held that the second, third, fourth and fifth advertisements, prima facie disparaged the product of the plaintiff, and the defendant was restrained from publishing the same on all forums until the references to RB’s product or the bottle which is deceptively similar to the registered mark of RB, were removed.

V Guard Industries Limited (‘V Guard’) deals in pumps and motors, water heaters, and the like. It started using the trademark ‘PEBBLE’ (a device mark comprising the word ‘Pebble’ and an image) (bearing Registration No. 2541387 in Class 11) for heating installations and electric products in 2013 and also obtained registration for the said mark in the same year. Butterfly Gandhimathi Appliances Ltd. (“Butterfly”) also deals in electronic products under its brand 'BUTTERFLY’. In February 2021, V Guard was made aware that Butterfly is selling their product - a mixer grinder - under the mark 'PEBBLE' on Butterfly’s website: www.butterflyindia.com. V Guard claimed that Butterfly is infringing V Guard’s trademark rights by selling similar goods under their registered mark ‘PEBBLE’, and filed a trademark infringement suit at the Delhi High Court: V Guard Industries Limited v. Butterfly Gandhimathi Appliances Ltd. CS(COMM) 225/2021. V Guard sought an ex-parte interim injunction to restrain Butterfly from using the mark ‘PEBBLE’ or any other identical or deceptively similar mark for dealing in electronic/ electrical goods including kitchen appliances. In its Order dated May 13, 2021, the Court, granted an ex-parte interim injunction against Butterfly stating that V Guard had made out a prima facie case in its favour.

case in its favour. The Court observed that a perusal of Butterfly’s website shows that it is selling a mixer grinder under the mark 'BUTTERFLY/PEBBLE PLUS'. And though Butterfly had registered the mark ‘BUTTERFLY’ (bearing Registration No. 765414 in Class 11) it had not filed any trademark application for the mark 'PEBBLE'. It is not uncommon amongst proprietors to register the parent brand name only, and use sub-brands or product names without checking their availability for use. However, cases such as this one, show that use of a competitor’s trademark as a part of one’s product/model name can make the user liable for trademark infringement even when it is used along with one’s own registered trademark. The suit will now proceed to trial.

In the era of internet, emoticons and symbols were commonly used for communicating emotions via messages and social media posts until the ‘internet Memes’ showed up. Presently, internet Memes (hereinafter referred as ‘Memes’) are extensively used by the public at large to express their ideas and emotions in a humorous manner. A meme usually consists of an image, short video, piece of text, etc., shared rapidly by internet users, often with slight variations. As sharing a meme within closed circle of friends, colleagues, family & relatives has become a common practice, it is essential to understand the legal perspective on using memes and the ownership rights in such works.

*We claim no copyright rights in the above image. It has been used for representational purposes only.

A meme is protected under the Indian Copyrights Act, 1957 falling under the ambit of "artistic works" provided under section 2(c) which includes paintings, sculptures, drawings (including diagrams, maps, charts), engravings, photographs, works of architecture and works of artistic craftsmanship. As the provision also clarifies inclusion of photographs (images) for protection under 'artistic works', such a work when copied or reproduced, without any authorization, may amount to infringement and attract section 2 (m) (i) of the Copyright Act which defines "infringing copy". Memes may either be created by using photographs or videos that are available in the public domain making them merely derivative works that generate from existing copyright material, or may have been created by the “memer” using pictures belonging to him/ her. It is the latter which has the possibility of resulting in an infringement suit and depends on the veracity of the images used in the making of the meme. Therefore, a true owner of a meme can always call upon the infringer to restrain usage of the meme and/or to pay damages, if their work is used without their consent for commercial purposes. However, despite taking all necessary precautions, there exists a possibility that an individual may end up infringing the rights of the owner. Here, it is the doctrine of ‘fair dealing’ that comes into play. This particular doctrine is an exception to the copyright law that protects an original work. Section 52 (1) of the Copyrights Act provides certain acts or works that cannot be constituted as copyright infringement, which includes artistic, literary, dramatic or musical work. In the case of Civic Chandran v. Ammini Amma [1996 PTR 142], the Kerala High Court substantiated, the fact that parody and satire, being copies of the original work for criticizing, do not count as illegitimate use of the original work and thus qualify as “fair dealing with the work”.

Determination as to whether or not a meme would qualify under ‘fair dealing’ would be subject to the following:

• Purpose of Work

Memes are generally considered to be “recreational activities” and provide for comic relief while expressing one’s ideas. Copyright infringement cases broadly deal with situations involving commercial benefit as opposed to recreational purposes. On the other hand, some social media accounts have derived economic benefits from these activities. In such cases, possible situation of infringement may be taken into account if proper permissions are not sought.

• Nature of Copyright Work

A foremost criterion in the field of copyright is the existence of the ‘artistic works’ in public domain. If the work in question has been available in the public domain for a very long time, and the memer has borrowed the same for the purpose of entertainment, he may take up the defense under the doctrine of fair usage.

• Amount of copyright work involved

Making use of insignificant portions or stills from a published, yet copyrighted work may not amount to infringement under the copyright laws. There also exists a plethora of stock photographs and templates available for public use which would not amount to infringement if used for the purpose of meme.

*We claim no copyright rights in the above image. It has been used for representational purposes only.

• Resultant effect of such use

Commercial benefit was never the aim of memes. Despite this, with time, business entities and bloggers have begun including memes to publicize their content and gain maximum advertisement benefits. Hence, permission from the owner of the original right becomes important before releasing it in the public domain to avoid an instance of infringement.

While the doctrine of fair usage has its advantages in the publication of memes, there are situations where memes may end up becoming a matter of concern. If there has been violation of fundamental rights by way of memes, the memer is not permitted to use the defence of fair use. For instance, in the infamous incident of creation of meme using a face cut-out of Mamta Banerjee and adding it to the Cannes outfit worn by Priyanka Chopra was seen to be such an instance and directions were issues for removal of the meme alongside an apology letter by the creator.

The case of Warner Bros shows a situation of violation of rights wherein the creators of two of the internet's well-known cat memes Charles Schmidt and Christopher Orlando Torres sued Warner Brothers for copyright and trademark infringement based on images of Nyan Cat (created by Torres) and Keyboard Cat (created by Schmidt) which appeared in the video game Scribblenauts for using them without permission. Warner Bros. had to pay a compensation of $100 million.

*We claim no copyright rights in the above image. It has been used for representational purposes only.

Therefore, it is advisable for young creators to seek proper approvals from the owners of the work prior to utilizing the same. Creation of meme for recreation and amusement purposes is fair but in case of utilizing the meme with any commercial intent, one should obtain necessary consents as well as licenses from the copyright owners of the works involved in order to avoid facing any legal liability.

The Hon’ble Delhi High Court recently in a judgement relating to a Trademark dispute refunded the entire court fees, where the parties mutually and privately settled the matter outside of the Court.

The Hon’ble Court relied upon the decision of the Hon’ble Supreme Court to pass this judgement in “The High Court of Judicature at Madras rep. by its Registrar General vs M.C. Subramanium & Ors”.

An understanding of the scheme of the Code of Civil Procedure, 1908 (“Code”) and Court Fees Act, 1870 (“Act 1870”) will be helpful.

Section 89 of the Code stipulates Settlement of disputes outside the Court:

(1) Where it appears to the Court that there exist elements of a settlement which may be acceptable to the parties, the Court shall formulate the terms of settlement and give them to the parties for their observations and after receiving the observations of the parties, the Court may reformulate the terms of a possible settlement and refer the same for: —

(a) arbitration;

(b) conciliation;

(c) judicial settlement including settlement through Lok Adalat: or

(d) mediation.

(2) Were a dispute has been referred—

(a) for arbitration or conciliation, the provisions of the Arbitration and Conciliation Act,1996 (26 of 1996) shall apply as if the proceedings for arbitration or conciliation were referred for settlement under the provisions of that Act;

(b) to Lok Adalat, the Court shall refer the same to the Lok Adalat in accordance with the provisions of sub-section (1) of section 20 of the Legal Services Authority Act, 1987 (39 of 1987) and all other provisions of that Act shall apply in respect of the dispute so referred to the Lok Adalat;

(c) for judicial settlement, the Court shall refer the same to a suitable institution or person and such institution or person shall be deemed to be a Lok Adalat and all the provisions of the Legal Services Authority Act, 1987 (39 of 1987) shall apply as if the dispute were referred to a Lok Adalat under the provisions of that Act;

(d) For mediation, the Court shall effect a compromise between the parties and shall follow such procedure as may be prescribed.]

Section 16 of the Court Fees Act, 1870

16. Refund of fee- Where the court refers the parties to the suit to any one of the mode of settlement of dispute referred to in Section 89 of the Code of Civil Procedure, 1908 the plaintiff shall be entitled to a certificate from the court authorising him to receive back from the collector, the full amount of the fee paid in respect of such plaint.

The Hon’ble Supreme Court of India was of the opinion that the purpose of refund of court fees is to reward the parties who have chosen to put an end to their litigation by resorting to a conciliatory dispute settlement mechanism, thus saving the time and resources of the Court.

Furthermore, the parties who have agreed to settle their disputes without requiring judicial intervention under Section 89 CPC are even more deserving of this benefit. This is because, by choosing to resolve their claims themselves, they have saved the state of the logistical hassle of arranging for a third-party institution to settle their dispute.

Though arbitration and mediation are certainly salutary dispute resolution mechanisms, the importance of private amicable negotiation between the parties cannot be underestimated. Thus, the participants in private settlements should be entitled to the same benefits as those who have been referred to explore alternate dispute settlement methods under Section 89 CPC.

*We claim no rights in the above logo. It has been used for representational purposes only.

Headquartered in San Jose, California, Cisco Systems, Inc., is an American international technological conglomerate firm. Cisco Systems, Inc. is into the development, manufacturing as well as distribution of networking gear, software, telecommunications equipment, and other high-technology services and products, ultimately being a key contributor to Silicon Valley's success.

As per Mr. John Morgridge, former CEO of Cisco Systems, “finding a logo for the company literally involved taking a drive in the sunshine for the founders.” While driving to Sacramento in order to complete the registration formalities for the company, the founders saw the Golden Gate Bridge framed in the sunlight.

Hence, the lines above the ‘Cisco’ lettering denote the Golden Gate Bridge. Further, Morgridge says, the founders hoped to “convey something about creating an authentic life and making a living at something you believe in, in a place you love, with people you really like to be with.” with their logo thereby shaping the future.

Kuchaman City- A Lost City

- Adv. Chinmay Pawar

The town of Kuchaman is in Nagaur district in the state of Rajasthan. The nearest major city is a state capital Jaipur approximately 150 kms. The city includes a few Havelis, traditional townhouses, and a fort overlooking the town.

The local fort is a tourist attraction. A few Havelis have also opened their doors to the guests. The major sights of interest include Kuchaman Fort, Meera Mahal, Jal Mahal, Sabha Prakash, Lok Dev Temple, Chini Pole, Ganesh Dungri, Shakambhri Hill.

*We claim no copyright rights in the above image. It has been used for representational purposes only.