Jul 20

RKD NewsNet July 2020 - Volume III

From the desk of Dr. Mohan Dewan | Assisted by: Adv. Aboli Kherde, Adv. Sachi Kapoor & Adv. Shubham Borkar

General News

  • Fear 2.0
  • International News

    Fear 2.0

    In my earlier article on this subject, I had shared my thoughts on Fear. In this part, I share my views on how do we overcome fear, particularly irrational fear and thereby build up our immunity and resistance to the virus.

    The first step in overcoming fear is to understand it, accept it. We must first realise that it is a very powerful emotion and will have an effect not only on the mind but also on every cell in our body. Since, it is an emotion, we have the ability to switch it on and off. We can control it or allow it to rule our lives. It is our choice.

    How does one switch off fear? Particularly, the fear of this virus! Firstly, let us accept that a little amount of fear is good. It makes us take precautions: social distancing is even otherwise a good thing. Being near other persons who have some infections, any infection can cause an infection or contagion. Crowding is certainly not a good thing, at any time: virus or no virus! The authorities must regulate the number of persons that live together or come together in any living space or any traveling space. Hygiene comes next. Merely, washing hands or using a sanitizer will not eliminate all forms of ill health. It will certainly minimize the risk of infection but not eliminate it. The important thing to do is when you touch anything, do not bring your hand to your face particularly your nose or mouth or eyes. Even if you are wearing gloves! The virus does not enter your body through your skin only through the openings in your face. Sanitizing your hands when you enter a shop protects the shop from being infected by you. Sanitizing your hands after leaving the shop protects you from infection from the shop. You decide what is more important. Respiratory hygiene should be practiced. It is never good to cough or sneeze without covering your mouth. Virus time is a good time to improve sanitation all around us. The mask has become a symbol of this virus. Wearing a mask has been made compulsory. But I have seen several people talking to each other with the mask hanging below the chin. This serves no purpose. The mask is an effective device to prevent a person from spreading droplets when he or she talks, coughs or sneezes. Even a two-layer homemade cotton fabric mask is good enough. By all means, it should be made compulsory for a person who is unwell. By all means therefore it is also ok to make it compulsory for persons who interact with each other even if they maintain social distance. Also, the type of mask is important. Researchers have found that trying a handkerchief or a bandanna is not a substitute for a mask. I have not fully understood the significance of gloves, particularly people going around wearing surgical gloves. It is difficult to sanitize a glove! If we are unwell we should stay at home. Wearing a pair of gloves is not going to prevent the spread of infection. Nor will it prevent a person from being infected. Having said this taking an informed decision on how one is going to protect oneself will reduce fear to a great extent.

    The next aspect in the process of reducing fear is to understand as much as possible about the condition that is causing this fear: This virus and the changes that it causes in a body into which it infiltrates. Let us first start with the changes. I am sharing with you some of the definite features which the experts tell us. They tell us that once it enters the body it likes to reside in the coolest part of the respiratory system: the nasal tissue and passages. Symptoms develop within 4 to 14 days starting from the day that one is exposed to the virus. One way to dislodge the virus is to do steam inhalation even if you think there is a remote possibility that you have been infected. I am told that 10 minutes of inhalation will work wonders. In over 95 percent of the cases, the symptoms are mild: A fever, a dry cough and a feeling of tiredness. Within 7 to 8 days as is common with most types of viruses, the body mechanisms are able to render the virus harmless. Antigens remain in the body as evidence that the body was infected once with the virus. The popular term is that the person has been ‘cured’. No curing has actually happened. Medication was taken or given to give relief for the symptoms: for example, paracetamol to bring down the fever, a cough syrup for soothing the throat and an energy pill to relieve the tiredness. Once the person has recovered, again popularly called as become “Covid negative”, he or she cannot infect another person and we are also told that such a person will develop immunity for a while. But for how long, that is not yet known. The same will be true of a vaccine. Even if it is developed and available commercially, it is not known how long will the immunity last. In any event, one cannot say that a 'cured' person has won a battle or conquered something. Simply, he or she was infected and after a while was not.

    It has been suggested that most people with mild symptoms should be allowed to treat themselves at home if they can be isolated and have someone to care for their needs during the isolation. People with mild symptoms do not need to be hospitalized, particularly in areas where the medical facilities have reached their capacity. Even normally hospitals can be places where one can pick up infections. The two signs to check for though are fever over 100 degrees Fahrenheit persisting for more than 3 days and oxygen saturation percentage of less than 90. We should train ourselves to read the simple pulse oximeter which is stuck on the finger. Within seconds it gives you readings. A high resting pulse corresponds to an elevated temperature. The experts say that if the oxygen levels go below 80 it can be fatal. Knowledge removes fear!

    And finally, prevention. Prevention occurs in two ways. Either you don't get infected or even if the virus tries to enter it does not cause any disease. The second aspect is significant. It means you have developed immunity to the virus. Vaccination or Inoculation is one method of prevention. The other is developing self-immunity. When a critical mass of the general population develops immunity called the threshold, it is referred to as "herd immunity". Eventually, this happened with the Spanish Flu in 1920 and will happen with Covid-19. When natural herd immunity happens the spread of the virus abates. When herd immunity sets in, there is no reason for a vaccine. The way countries like Iran are reporting numbers, they appear to be going in that direction. In the meanwhile, how do we build immunity? There is no one size fits all recommendation. Some experts swear by vitamin C, others speak of turmeric lozenges. Still others speak of green tea and honey. Not to be left behind is the Indian gooseberry (Amla). Others also suggest dark chocolate, spinach, ginger, garlic, fenugreek, oranges and broccoli. Why not try them all, whatever is available and what you like! It could do no harm. A strong body and a healthy mind will go a long way in building immunity and keeping fear at bay! Stay Healthy! Stay Safe!

    *We do not claim any copyright in the image. The same has been used for representational and academic purposes only. Image by succo from Pixabay.

    Go To Top

    Give the devil his due, even in patents!

    Dr. Honjo, a professor at Kyoto University Medical School, Japan, and a Nobel Laureate of 2018, filed 6 patent applications in 2002. Earlier during 1998 and 1999, he had discussed his research outcome with Dr. Freeman, a researcher with Dana Farber and Dr. Woods at the Genetics Institute, who agreed to collaborate and work on their respective areas of specialization connected with the work of Dr. Honjo. A joint publication was also credited to the three of them in 1999. However, the patent application filed by Dr. Honjo in 2002 did not include Dr. Woods and Dr. Freeman as inventors as he felt that their contribution to the invention was insignificant. Dr. Honjo assigned his patent rights to Ono Pharmaceuticals Ltd. (“Ono”).

    Dana Farber challenged the exclusion of the inventors from the patent application filed by Dr. Honjo. Article 35 U.S.C. § 116(a) which states that joint ownership is applicable even if the inventors did not physically work together, did not make the same type of contribution, or did not contribute to each and every claim in the application. It was argued that the work was based on the independent experiments carried out by Dr. Honjo and the previous collaborative work with Dr. Woods and Dr. Freeman was, at the most, speculative and it was not in vivo. Dana Farber pointed out that the inventors excluded had made an important contribution to the concept of the invention even though they were not involved in the subsequent experimentation.

    The Federal Circuit affirmed that Dr. Woods and Dr. Freeman should be deemed inventors of the subject matter of patent along with Dr. Honjo. (Dana-Farber Cancer Institute v. Ono Pharmaceutical Co., Ltd., No. 19-2050 (Fed. Cir. 2020), July 14, 2020)

    Go To Top

    Orange is the New Black, they said

    Orange is the New Common, they meant?

    Hitachi Construction Machinery Pvt. Ltd., is a Japanese company and is a subsidiary of the Hitachi Group. The Company applied for the colour mark ‘’ in April, 2015 at the Japan Patent Office (JPO) in Classes 7 and 12. The JPO, however, rejected the registration of the colour mark. Hitachi appealed against this decision at the Appeal Board of the JPO. The Board upheld the decision of the JPO and stated that the mark was not registrable as neither was it inherently distinctive nor had it acquired any distinctiveness and thus dismissed the Appeal. Hitachi further appealed to the Japan IP Court. Hitachi submitted that the consumers associated this particular pantone of orange specifically to its products, especially since the company is using the colour continuously since at least 1974 till date. Hitachi also provided images of its various machines using the colour :

    *We claim no copyright on the above image and the same has been used for educational and representative purposes only.

    Hitachi also claimed that its machines had a 20% market share in the Country and hence were popular amongst consumers/traders.

    The Court however, was not convinced with the arguments put forth by Hitachi and stated that the ‘orange’ colour was widely used especially in the construction and agriculture industries. The Court further stated that the Japan Industrial Standard has adopted the ‘orange’ colour as a safety sign, since the colour is prominently visible from a distance and thus, helps in preventing accidents. The Court observed that in addition to the use of the colour ‘orange’, Hitachi also used the colour ‘white’ on its products/vehicles. Based on the above reasonings, the Court dismissed the appeal.

    Go To Top

    Foreal not similar to L’Oreal? For real?

    Lewei Nano Tech. Co. Ltd., a Taiwanese Company had applied for the mark (foreal) written in a stylized form on July 28, 2017 for the following goods: ‘germicide; germicide for environmental sanitation; disinfection for environmental sanitation agent; fungicide for environmental sanitation; disinfectant for sanitation; drug for animals; wound dressings for animals; detergents for animals; disinfectants for animals; for animals bactericide; fish medicine; veterinary disinfectant; veterinary medicine; veterinary medicine; pigeon medicine; deodorant for clothes; deodorant for non-human body and animals; deodorant for clothes agent; deodorant for textiles; and antibacterial hand sanitizer’. The mark was accepted and published on February 21, 2018.

    L’Oreal S.A., a French personal care company headquartered in Paris, filed an opposition on the grounds that, the applied mark ‘Foreal’ and the registered mark ‘L’Oreal’ are phonetically and visually deceptively similar and the registration and use of the applied mark is likely to cause confusion amongst the consumers. L’Oreal also stated that they have several marks that are registered representing a combination of the word ‘L’Oreal’ along with Chinese characters and thus the registration and use of the applied mark will cause confusion.

    However, the Taiwan Intellectual Property Office (TIPO) denied the request put forth by L’Oreal finding no violation of the Trademark Act. L’Oreal appealed against TIPO’s decision, but the Appeal Board sided with TIPO. Dissatisfied with the order, L’Oreal then approached the Taiwan Intellectual Property Court (TIPC), requesting the Court to set aside the decisions of the TIPO and the Appeal Board.

    In June 2020, the TIPC rejected all the claims put forth by L’Oreal and affirmed the decision of TIPO and the Appeal Board. The Court based its decision on the following reasons:

    • The degree of similarity is low, even though the marks contain the same characters ‘oreal’, the distinct prefixes result in distinct pronunciations. It was further observed that L’Oreal was a French word and thus had a different pronunciation as compared to the applied mark ‘Foreal’ which sounded like the English term ‘for real’.

    • The Court went on to state that, the goods covered under the mark Foreal were distinct from the goods covered under the various registrations of L’Oreal.

    • The Court stated that, even though L’Oreal trademarks are more renowned, the applicant has honestly adopted the mark Foreal and that there can arise no actual confusion in the marketplace.

    Based on the abovementioned reasonings, the TIPC dismissed L’Oreal’s claims and the mark Foreal stands registered.

    Go To Top

    YouTube not bound to provide email, IP address or telephone number of Film Pirates- CJEU

    The Court of Justice of the European Union (“CJEU”) has clarified that the popular video-sharing platform YouTube is not bound to provide all the details of the users (email, IP address, or telephone number) who upload films illegally on YouTube.

    Somewhere between 2013 and 2014, 2 films, Parker and Scary Movie 5, in which the film distributor Constantin Film Verleih Gmbh (“Constantin”) has exclusive rights, were illegally uploaded on YouTube by some users. Constantin requested YouTube to provide the email address, telephone number, IP addresses used by these users to upload the files and the date and time when the films were uploaded. When YouTube denied providing such information, Constantin approached the German Federal Court of Justice against YouTube and its parent company Google Inc. 3

    Constantin was entitled to certain information under Article 8(2)(a) of the Directive on Enforcement of Intellectual Property Rights (hereinafter referred to as “the Directive”). Article 8(2) of the directive allows the competent judicial authorities to order the disclosure of the ‘names and addresses’ of infringers of IP rights. However, the German Court was unclear on the extent of the information that could be provided under the Directive. Hence, the Court asked the Attorney General’s opinion.

    The AG in his opinion stated that he was 'convinced' that in a case where a right holder requests an online platform to provide the 'names and addresses' of users who have used that media platform so as to cause infringement, it will not include the email addresses, telephone numbers and IP addresses of users. Providing such personal information would go beyond what was intended by the Directive. The Court thus ruled accordingly.

    The case was then referred to the CJEU wherein Europe’s Top Court confirmed the AG’s opinion and held that, “When a film is unlawfully uploaded onto an online platform, such as YouTube, the right holder may, under the directive on the enforcement of intellectual property rights, require the operator to provide only the postal address of the user concerned, but not his or her email, IP address or telephone number.”There must be a balance between protecting personal data and copyright.

    This decision is important as it provides clarity on the kind information that can be shared by an online platform with the right holders in case of a piracy claim/ copyright infringement claim in the European Union.

    Go To Top

    It’s a temporary “Nil” for Patanjali’s CORONIL

    Patanjali Ayurved Ltd.’s (“Patanjali”) lost the trademark Coronil, as a Single Judge of the Madras High Court passed an interim order restraining Patanjali from using the mark till July 30, 2020. Earlier in June, Patanjali had claimed that its drug under the brand Coronil was an indigenous cure for COVID-19. However, the Ministry of AYUSH clarified that Patanjali could sell the drug only as an immunity booster and not as a cure for COVID-19. Patanjali has filed applications for the trademarks “Coronil Vati” and “Coronil Tablet” in Class 5 through its Divya Yog Mandir Trust.

    A Chennai based company named Arudra Engineering Private Limited (“Arudra”) owns the trademark Coronil and has been using the same since 1993. Arudra is engaged in manufacturing chemicals and sanitizers for cleaning heavy machinery and containment units and has trademark registrations for ‘‘Coronil-213 SPL'' and 'Coronil- 92B'' since 1993. At the Madras High Court, Arudra submitted that the mark adopted by Patanjali for its drugs is nearly identical to its registered marks and although the products sold by the company are different, the use of nearly identical trademarks would still amount to infringement of its intellectual property rights. It submitted that if Patanjali is permitted to use the mark, it will directly affect Arudra’s reputation and goodwill of over 26 years in both international and domestic markets.

    The key takeaway from this case is that in practice, if contending parties are of unequal stature and reputation, as in this case, it is all the more important that a search in other categories or classes should also be conducted before adopting a trademark. This is because the new mark is to be used by a party that does not have much to lose commercially even if the mark doesn’t get registered. If the trademark owner is a small entity, chances are that it will act and capitalise on having a prior registration (even if it is for different goods) only because of the difference between the economic statures of the parties and to capitalise upon the fact that the other party has higher stakes in the matter and may eventually agree to settle.

    Go To Top

    IndiaMART gets injunction against online Phisher named Akash Verma

    Cybercrimes are rising by the minute. In a few years, it will be safe to say that there will be more cybercrimes than normal crimes. A few days ago, we covered the case of Hindustan Unilever Limited (HUL) wherein certain third parties were misrepresenting themselves to be associated with HUL by using deceptively similar domain names and email addresses. This time it is IndiaMART that has faced similar issues.

    IndiaMART is an internet-based marketplace that provides free and paid listings for various industries/products/services of small and medium-sized enterprises, where buyers and sellers can interact with each other for their requirements. IndiaMART has registered the trademark INDIAMART in various classes and has been using the same since 1996. It also has a registered domain name- www.indiamart.com.

    In 2019, IndiaMART received complaints regarding illegal and fraudulent use of its name/trademark/logo/trade dress by a third party named Akash Verma. There is no information about the phisher, except his name which was traced from the bank account in which an innocent user was asked to deposit money. The complaints mentioned that Akash Verma sent emails, soliciting allotment of dealerships to the users of IndiaMART. He asked them to make security deposits ranging from INR 20000 to INR 30000 in his account. He also misled the public by providing a fake identity card portraying himself as an employee of IndiaMART and also used the brochures, letter pads with the same I.D. and logo as that of IndiaMART. He further used email addresses which were deceptively similar to those of IndiaMART, i.e. indiamart733@gmail.com, infoindiamart@gmail.com, supportindiamart@gmail.com & indiamart08@gmail.com.

    Pursuant to the complaints, IndiaMART approached the Delhi High Court1 against Akash Verma. It also added Google and Vodafone Idea Limited as defendants to the suit seeking an order from the Court, directing Google and Vodafone Idea Limited to disclose email ids and telephone numbers of Akash Verma .

    The Court after considering that it is not only a case of cheating IndiaMART but also the innocent members of the public, found it necessary to grant an ex-parte ad-interim injunction in favor of IndiaMART and against Akash Verma.

    The Court also directed Google to disclose the details of the identity of Akash Verma besides the I.P. addresses and other details available with it concerning the above-mentioned fake Email IDs within one week. Vodafone Idea Limited was also directed to disclose the user details of the mobile numbers used by Akash Verma within one week.

    It also directed that in case any complaint is filed by IndiaMART regarding the above grievances, the Cyber Crime Cell, Economic Offences Wing of Delhi Police will inquire into the matter and submit a report before this Court at the next hearing.

    1Cell, Economic Offences Wing vs Mr. Akash Verma & Ors - CS (COMM) 255/2020

    Go To Top

    The Fair-Play

    As an aftermath of the #Blacklivesreallymatter protests all over the world, against skin-colour based stereotyping, Johnson and Johnson exited from the fairness cream category. This piled up huge criticism of Hindustan Unilever Limited (HUL) and its flagship Fair and Lovely and Fair & Handsome range of products. Resultantly, HUL made an official announcement on July 2, 2020 to rebrand ‘Fair and Lovely’ as ‘Glow & Lovely' and 'Fair & Handsome' as ‘Glow & Handsome’.

    However this step had its own cost, as HUL wasn’t using these marks and filed for the marks on a proposed to be used basis. Emami, which already had its 'Emami Fair and Handsome' in the market, accused HUL and its rebranding as an “unfair business practice”. It issued a press statement threatening legal action against HUL for violating its trademark rights. Emami is currently the market leader in the men’s segment of fair cream and claims that its product is generically known as the “Handsome wala cream”.

    Consequentially, HUL filed an interim application under Section 142 of Trade Marks Act, 1999 (‘the Act’) seeking an injunction against Emami for issuing groundless threats in relation to the use of its trademark ‘Glow & Handsome’. The Court observed that “prima facie, it does appear that having filed its trademark applications for the mark ‘GLOW & HANDSOME’, the Plaintiff (HUL) is the prior adopter of the said mark.”. The Court held that Emami’s threats “do amount to a threat” but whether they are unlawful or groundless is yet to be considered. Hence the Court restrained Emami from initiating any legal proceedings against HUL, without prior notice of seven days to HUL.

    Aggrieved by the above, Emami filed an appeal2 seeking to stay the operation, execution, and effect of the ex-parte order against the said order alleging that the order is grossly contrary’ to Section 142 of the Act and was passed without ‘balance of convenience’ and raised an issue of jurisdiction of the Court to pass such an order. Emami also argued that the order is likely to be misused by the HUL to impair Emami’s valuable right to initiate legal proceedings.

    The Division Bench hearing the appeal noted that the single-judge hearing the original application had given liberty to Emami to apply for a variation of its order with 48 hours prior notice to the HUL’s lawyers. The Court had also directed to place the interim application for further reliefs on 27th July 2020. Hence the division bench did not interfere with the order and dismissed Emami’s Appeal.

    2ADHOC APPEAL NO. 159 OF 2020 - Emami Limited V/s. Hindustan Unilever Limited)- BHC

    Go To Top

    Hidden Meaning: in logos appearing with emails!

    In this section, we generally explore the meanings of various clever trademarks. However, in this issue, we bring to you an interesting technological feature launched by Google, that not only has a hidden meaning, but might also save you from phishing! Read on to find out:

    Witnessing the sudden escalation in the number of phishing emails through which fraudsters steal personal data and dupe innocent users for their money and personal details, Google has announced a new security enhancement feature on Gmail which will verify the brand logos attached to emails. This way the source of an email can be easily identified and imposters can be ignored or reported.

    Google will use the “Brand Indicators for Message Identification” (BIMI)’s standard for the above-mentioned functionality. Emails would also be authenticated using the existing “Domain-based Message Authentication, Reporting & Conformance” system (DMARC). DMARC is an email authentication, policy, and reporting protocol system. Google will be using these 2 methods to validate the ownership of a logo.

    It would appear like a verified badge prevalent on social networking sites like Instagram and Twitter, however, it would not contain the blue tick. It would look like an avatar of the logo of the brand that has sent the email, like the one in the CNN image below.

    Image Source- https://www.engadget.com/gmail-bimi-logo-verified-025752904.html

    All of us have at some point in time have received such phishing emails and this security update would assure us that the mail has been sent from the authorized brand and not any phisher.

    Go To Top

    Another flavourful entrant to the Geographical Indication list in India!


    * We claim no copyright on the above image and the same has been used for educational and representative purposes only. Image Source: https://www.civilsdaily.com/news/kashmir-saffron-gets-gi-certificate/

    The Kashmir ‘Kesar’ (Saffron) has been granted a GI Tag making it the newest entrant to the list. This has not only pinned the item on the global map, but will also ensure prominence in the export market. Did you know, that the Kashmir saffron is the only saffron in the world that is grown at an altitude of 1,600 meters, adding to its unique characteristics such as longer and thicker stigma, natural deep-red colour, strong aroma, bitter flavour and the like. This GI certification will also deter adulteration of the product, resulting in higher quality and better remuneration to the authentice traders.

    Go To Top


    Keep yourself acquainted with the latest in IP news. Subscribe to our free newsletter to get regular updates.

    Copyright © 2022 R. K. Dewan & Co.