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Aug 20

RKD NewsNet August 2020

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

General News

  • New Age Law for the New Age Consumers – Highlights of the Consumer Protection Act, 2019.
  • Print what you want, eat what you print!
  • International News

    New Age Law for the New Age Consumers – Highlights of the Consumer Protection Act, 2019.

    The Consumer Protection Act, 2019 (CPA, 2019) came into force on July 20, 2020, and replaced the 30-year-old Consumer Protection Act, 1986. The new consumer law has been introduced keeping in mind the issues faced by the new-age consumers and the increasing online shopping culture. It also simplifies the procedures for approaching the consumer forums, thereby encouraging consumers to seek legal recourse, if required.

    Highlights of the CPA, 2019

    1. Establishment of the Central Consumer Protection Authority: CPA, 2019 has established a regulatory authority called Central Consumer Protection Authority (CCPA), with wide powers of enforcement. The CCPA has an investigation wing, headed by a Director-General, which can conduct inquiry or investigation into consumer law violations.

    2. Product Liability: With the introduction of product liability conditions, manufacturers, sellers, and service providers can be held liable for damages caused to a consumer because of defective products or deficient services. The term 'product seller' has also been defined under the CPA, 2019 and it includes a person who is involved in listing the product for a commercial purpose. This means, it includes e-commerce platforms as well. Under the erstwhile law, e-commerce platforms would escape liability by claiming that they are mere 'platforms' or 'aggregators'. However, this defence will not be accepted under CPA, 2019.

    A manufacturer/seller can be held liable if his/her product has a manufacturing defect, design defect, or does not conform to its express warranties, even where he/she proves that he/she has not been negligent or fraudulent while making the express warranty for the concerned product.

    3. E-Commerce transactions: As stated earlier, the CPA, 2019 accommodates the new buyer-seller relationships. Resultantly, the definition of the word ‘Consumer’ now includes any person who buys goods or services, whether offline or electronic means, teleshopping, direct selling, or multi-level marketing. New Rules especially dealing with E-Commerce transactions have also been enforced.

    4. Misleading Advertisement: The CPA, 2019 has specified penal provisions including fine of upto INR 1 million (~USD 13400) and imprisonment of upto 5 years for misleading advertisements. The CPA, 2019 also fixes liability on celebrity endorsers and puts an onus on them to verify the veracity of the claims made in advertisements of the products endorsed by them. In case of a misleading advertisement, Central Consumer Protection Authority (CCPA) can impose a penalty of upto INR 1 million (~USD 13400) on the endorser. It can also prohibit such endorser from endorsing any product or service for a period of 1 year. This prohibition can extend up to 3 years in case of a subsequent offence.

    5. Enhancement of Pecuniary Jurisdiction: The pecuniary limits for courts’ jurisdiction have been revised under the CPA, 2019. Under the CPA, 2019:

    • the district forum can entertain consumer complaints where the value of goods or services paid does not exceed INR 10,000,000;

    • the State Commission can entertain disputes where such value is between INR 10,000,000 and INR 100,000,000; and

    • the National Commission can exercise jurisdiction where such value exceeds INR 100,000,000.

    6. E-Filing of Complaints: CPA, 2019 provides flexibility to the consumers to file complaints at the consumer forum located at the place of their residence or work. This is unlike the erstwhile practice of filing it at the place of purchase or where the seller has its registered office address. CPA, 2019 also enables consumers to file complaints electronically and for hearings to be conducted parties through video-conferencing. This makes the procedure easier for the consumers and reduces inconvenience caused to consumers.

    7. Provision for Alternate Dispute Resolution: CPA, 2019 has also included a mechanism for mediation as an Alternate Dispute Resolution, making the process of dispute resolution simpler and quicker. It establishes Mediation Centres at the Central and the State levels for cases in which the forums anticipate that settlements may be reached between the parties by way of mediation.

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    Print what you want, eat what you print!

    Every foodie has always dreamt of ‘downloading their food’ or wishing for a technology that just ‘hands out food’ exactly the way you like it. Well, I believe that day is almost here! We are all conversant or well, let’s just say have a fairly good idea of what a 3D printer is and how it functions. We know that we can create mugs/pen-stands/ mobile holders and the like in our favourite design right at home. Now what if I told you, that you could print your food exactly the way you like? Confused? Let’s jump right to it.

    The basic concept of a 3D printer is that it creates 3 Dimensional objects with complex designs from digital files, layer by layer and it is all done rather quickly.

    Now the aim of a 3D food printer is to create the dish you want, in the shape you want, with your choice of ingredients and nutritional proportions which will be fed into/downloaded as a file onto the printer in the form of digital files. Sounds fascinating right? The 3D food printer uses syringes to hold the material of the food and creates the 3-dimensional food layer by layer.

    *Image Source: https://3dprinting.com/news/swedish-3d-printed-food-elderly/

    People can now put on their MasterChef Hats right at home and create not only appetizing but visually appealing food. This 3D food printer can be used to create geometric shapes in food which would take immense time and effort to create by hand. In fact, 3D food printing can not only create food but also edible cutlery! byFlow is a company based in Netherlands and is one of the leading companies in the world when it comes to 3D food printing.

    *https://interestingengineering.com/3d-printing-will-change-the-way-you-eat-in-2020-and-beyond

    This mechanism is of course not yet developed for complex food curries, but is at present perfect for bakeries and confectionaries. This will help chefs up their plating skills by leaps and bounds! In addition to luxury benefits, the 3D food printer is also being explored for creating food in space and in the healthcare industry. The 3D printing technology is still in its nascent stage and the world is yet the explore the marvels of the technology in the years to come.

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    Beijing holds GRUNDFOS as well-known

    - Adv. Sumeet Sirohi

    Recently, the Bombay High Court granted the status of a well-known trademark to ISKCON. The trend of declaring marks with considerable reputation and goodwill as well-known goes on across the world too. The Beijing Intellectual Property Court (the Court) has recently declared the trademark GRUNDFOS and its Chinese counterpart Gelanfu as well-known trademarks under Article 13 of the Chinese Trademark Law, 2001. Article 13 states that a person who holds the right in a trademark has to claim well-known trademark protection in an infringement suit. The Court has also awarded a huge compensation of RMB 3 Million against infringement of the said trademark, to deter the alleged outright infringement of well-known trademarks.

    The Danish Company Grundfos Group (Grundfos) is known worldwide for its water pumps. A suit for trademark infringement and unfair competition3 was filed by Grundfos against Gelanfu Water Supply Device (Shenzhen) Co., Ltd. (Gelanfu Shenzhen), Shenzhen Weige Trade Co., Ltd. (Shenzhen Weige), Shenzhen Yihefeng Sci & Tech Co., Ltd. (Shenzhen Yihefeng) and Beijing Jingdong Sanbailushidu Electronic Commerce Co., Ltd. (Jingdong) (collectively referred to as ‘the Defendants’) before the Court. Grundfos alleged that the Defendants were maliciously using an identical mark GRUNDFOS, for selling hot water circulation systems on E-commerce websites and their flagship stores. Further, Gelanfu Shenzhen was alleged to have adopted the Chinese counterpart of the mark GRUNDFOS as its enterprise name and used taglines such as "Danish technology serves China", "Danish quality”, "Grundfos produced and assembled in China" on its website to further deceive the public into buying the infringing goods under the impression that they were sold by the Danish company.

    On the other hand, it was contented by the Defendants that the goods sold by them fell under class 11, whereas Grundfos had registered its trademark in Class 7. It was further contended by them that their use of the mark GRUNDFOS fell under fair use, as allegedly, they were using the mark GRUNDFOS to showcase the origin of the goods being sold by them from Denmark.

    The Court rejected all the contentions by the Defendants and held them liable for trademark infringement, imposing a sum of RMB 3 Million as damages to be paid to Grundfos. The Court took the bad faith of the infringers into account while awarding damages, which showcases the worldwide judicial trend to provide wide and strong protection to well-known trademarks. A similar provision to that of Section 11 (6) of the Indian Trademarks Act, 1999 is present under Article 14 of the Chinese Trademark Law, 2001, which states the factors to be taken into consideration to hold a trademark as well-known. However, the pre-requisite to Article 14 is that a person has to claim well-known trademark protection in an infringement suit to obtain the status of a well-known mark. This case has been appealed to the higher authority for further adjudication.


    3(2016) Jing 73 Min Chu No. 1192 Civil Judgement of Beijing Intellectual Property Court

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    COLIN & HARPIC clean up Super Shine

    Reckitt Benckiser India Pvt. Ltd. is the proprietor of the trademarks COLIN and HARPIC. Reckitt Benckiser approached the Delhi High Court1 alleging that Super Shine Industries (Super Shine) was found infringing Reckitt Benckiser’s registered marks COLIN and HARPIC. Reckitt Benckiser has also alleged that Super Shine has replicated its packaging/ trade dress and the same is visible from the screenshots of Super Shine’s website. Reckitt Benckiser also claimed that Super Shine has made huge sales from the infringing packaging.

    Super Shine argued that it is not in the business of manufacturing and selling glass and toilet cleaners. It uses its own mark "Super Shine" on its product and the screenshots of the website, referred to by Reckitt Benckiser are old. It stated that it is not using the impugned trade dress currently.

    The Court agreed that Reckitt Benckiser has been able to prove the classical trinity required for Court to grant an interim injunction i.e. a. set up a prima facie case in its favour, b. the balance of convenience also appears to be in its favour and c. if the injunction is not granted irreparable loss will be caused to it. Hence, the Court granted an interim injunction in favour of Reckitt Benckiser, restraining Super Shine from using the trademarks COLIN and HARPIC or any labels or trade dress which may be deceptively similar to those of Reckitt Benckiser till next hearing, that is, 11th August 2020.

    Super Shine Industries requested the Court to close the matter at its current stage itself, as it is not manufacturing and selling glass and toilet lavatory cleaners under the impugned trademarks and/or trade dress. The Court ordered that it will examine this aspect on the next date of hearing.

         

    Image Source- https://www.snapdeal.com/product/colin-regular-500-ml-with/678279440814 and the Court Order. We do not claim in copyright in the images. They are used for representational purposes only.


    1Reckitt Benckiser India Pvt Ltd vs Ms Super Shine Industries- CS(COMM) 265/2020 Decision dated 21st July 2020

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    War of Biryanis

    Thalappakatti Naidu Anandha Vilas Biriyani Hotel was started in the year 1957 in Dindigul by Mr. P. Nagasamy Naidu. Nagasamy always wore a turban called Thalapa (a traditional head-dress), which over the years led him to earn the nickname “Thalappakatti Naidu”. This eventually became the name of his restaurants ‘Thalappakatti Naidu Anandha Vilas Biriyani Hotel’ and his biryani came to be known as Thalappakatti Naidu Biriyani. The restaurant became so popular that it was featured in various films and magazines. It has 42 branches in Chennai and also in the USA, France, Malaysia, Singapore, Colombo, and UAE. It has registered the mark “Thalappakatti” with prior use from 1957 and the device mark DINDIGUL THALAPPAKATTI NAIDU BIRIYANI RESTAURANT since 1998.

    The present issue commenced when another restaurant in Chennai adopted the name “Thalapakattu Biriyani”. Thalappakatti Biriyani Hotel approached the Madras High Court stating that the infringer had adopted a mark almost identical to the trademark and trading style “Thalappakatti”, to deceive the general public and sought a decree of permanent injunction against it. The alleged infringer did not appear before the Court and the matter proceeded exparte. The Madras High Court granted permanent injunction in the “Thalappakatti Biryani Hotel”2 trademark infringement case.

    The Court held that the combination of the style shows that the infringer was using the very same word “Thalappakatti Biriyani” in prominent letters and the only difference was in the last letter “U” and “I”, which was insignificant. This made it clear that the infringer was attempting to ride upon the reputation of Thalappakatti Biriyani. Hence, the Court granted a decree of permanent injunction restraining the infringer from infringing the trademark and trading style “Thalappakatti”, “Thalapakattu” or “Thalappakatti Biriyani Hotel” or using marks that were deceptively similar to such trademarks and trading style.


    2 M/s. Thalappakatti Naidu Anandha Vilas Biriyani Hotel Vs Thalapakattu Biriyani - C.S.No.300 of 2019 – 24th July 2020

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    India’s Patent King – Lalit Mahajan

    India is a land of bright minds. We have a history of exceptionally talented inventors, right from the Vedic age till date. In this article we would be covering the accomplishments of the lesser known modern day hero Lalit Mahajan.

     

    Who is Lalit Mahajan?

    Lalit Mahajan is the chairman of J Mitra & Co. Pvt Ltd, an IVD (in-vitro diagnostics) manufacturing company. He has been recognized as “India’s Patent King” by The Wall Street Journal for his outstanding work in innovation and research, which has resulted in him bagging the highest number of patents (55) by a single individual in India. He was awarded in the category of Individual Inventor for securing highest number of granted patents during the previous 5 years (2006-2011) on World Intellectual Property (IP) Day, 2011. Lalit Mahajan completed his Chemical Engineering from IIT, Chennai in 1968 and established J Mitra & Co. in 1969. He has developed various biotechnological products for in vitro diagnostics, and is constantly researching for the development of better diagnostic kits for emerging infectious diseases like Dengue, Chikungunya, H1N1, etc.

     

    But 55 isn’t a huge number, right?

    To surprise you more, Lalit Mahajan reached the milestone with just 23 patents in 2011. Yes, it took only 23 patents make the mark of the inventor with highest number of patents in India. IP Scene in India then, was not at all like it is now. It took years to get one patent registered.

    Pic Credits - COURTESY OF J. MITRA & CO.

    Lalit Mahajan, right, receives an award from the Minister for Commerce and Industry, Anand Sharma.

     

    Comparison with other countries

    Yes, 23 is a pretty small number if we compare it to patent filings in other countries. Japan’s Shunpei Yamazaki leads the world with 5701 patents, while US has Kangguo Cheng with 2176 patents. But in a country like India where the hurdles in securing a patent were enormous and the time cost was also huge, 23 is a significant achievement. When total patent applications filed in China were 1.4 million and the US was at around 6 lakhs, India had a meagre 50659 applications. Thanks to the complete revamping of Indian IP ecosystem, it is contemplated that India has around 55,000 patents filed in just 1 year (2019-2020).

     

    Do Indians lack innovation?

    No. In fact, many of Indian-born engineers are spearheading the product development teams in Silicon Valley. Believe it or not, the number of Indian-born American inventors with more than 23 patents is at least in the hundreds. The most striking example is of Idaho based IIT Delhi alumnus Gurtej Sandhu who racked up more than 1299 patents in the last 29 years and has surpassed the famed inventor Thomas Alva Edison, who had 1,093 US patents. (We will cover his story some other day). There are many others like him.

     

    Then, why is India lagging?

    India is not lagging anymore, it has completely revamped its IP Ecosystem and ensured Patents are filed, prosecuted and granted in an inventor friendly and less time consuming manner. Where patent applications in China dipped by 9.1% in 2018-19 compared to 2017-18 and US saw an increase of 3%, India had an increase of approximately 6.3 % in 2018-19 and 10 % in 2019-20. Hence we Indians are not lagging, we are running faster than others, we just started late.

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    THE TRIPLE TEST STORY

    - Ashima Sobti

    A simple easy conversation between an Inventor and a Lawyer, talking about inventions:

    Hello Mr. Lawyer, how do I know if my invention is patentable in India or not?

    Well according to the Indian Patent Act, 1970….. Errr… ok, let me tell you something simpler. You yourself can do a simple three-step analysis of your invention to find out. It is formally called “The Triple Test”. All you need to do is ask the below mentioned questions to yourself:

    First: Is your invention Novel?

    Now, what does novel mean? It simply means that your invention should not have been created, anticipated, published, used, or be in existence in the public domain anywhere in the world, before you file the patent application.

    Ahh! So you mean I can only patent a rocket? Huh!

    No. It only means that you have to ensure whatever change, BIG or small, you are bringing with your invention, is not known of or used before. It would be clearer on the second step.

    Ok! Tell me the second step.

    Second: Does your invention have an Inventive Step?

    ‘Inventive Step’ means the invention must employ some technical advancement over the existing state of art, enhance economic significance and be non-obvious in comparison with the existing technology. You clearly see how so many things that you use daily, like your license, cars, home appliances, computers evolving day by day. These evolutions, if significant, can be patented.

    So you mean if I improve a product or a process, I can apply for its patent?

    Yes! But the improvement can NOT be as simple as common sense.

    Ah, Nice!! Ok!! Tell me about the Third question…...I’m interested 

    Third: Is your invention capable of being manufactured or used in the industry?

    This is simple. Have you invented a design/ product or a process that can be produced with industry help or is it just imaginary? Also, can it be used by people or an industry.

    If answer to all three questions is a yes… Then Voila!! You can apply for a patent.

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    COVID SNIPPETS

    The mystery of low number of Covid-19 cases in China

    The latest reports estimate about 17.5 million coronavirus cases of infection and death of 676,795 across the globe (worldometers.info). USA has reported more than 4.5 million cases with death of more than 150,000. Brazil estimates 2.6 million cases and death of more than 90000 and India reported more than 1.6 million cases and death of more than 35000 people. The first case of Coronavirus was discovered in Wuhan, China and the infection has travelled through across the world reaching more than 200 countries. Surprisingly, the count of infected people stands at around 84000 with the death count of about 4600.

    It has been suggested that the true picture of China regarding infected cases is not available and therefore, numbers available may not be correct. China has resorted to stone-walling regarding coronavirus related enquires. However, it is also reported that the cover-up may not have occurred on a very large scale.

    A paper was recently published in Science (July, 2019) titled “Serial interval of SARS-Cov-2 was shortened over time by non-pharmaceutical interventions”. The paper presents statistical evaluations and modeling of cases and infections and one of the key concepts in the paper is is “serial interval” which is the gap in terms of time between the onset of symptoms in Person A and Person B, who is infected by the Person A. Researchers compiled a database of COVID-19 transmission pairs, in which symptom onset dates and social relationships were available for both infector and infectee. The data was reconstructed from the available public reports of 9120 confirmed COVID-19 cases reported by 27 provincial and 264 urban health commissions in China outside Hubei province. Researchers concluded that this serial interval between early January and early February came down from 7.8 days to 2.6 days. The reduction in the serial interval meant that all infections arising out of an infected individual were restricted to 2.6 days and not beyond. They attribute this to aggressive contact tracing, quarantine and isolation protocols. The isolation meant that the infected person could not infect anymore people later in the infection cycle. The paper also emphasizes that the only way to flatten the curve, in the absence of a vaccine is test, trace and isolate. It may not be easy for other countries to follow testing, tracing, and isolation as ruthlessly as done in China.

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