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Aug 20

RKD NewsNet August 2020 - Volume II

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

Herbicides temporarily restrain weeding infringement

UPL Limited (UPL) is engaged in the business of manufacturing insecticides, fungicides, herbicides, and the like and has developed chemically synergistic herbicide compositions. UPL has been granted, inter alia, patents for these processes, vide patent Nos. IN 194225, IN 206130 and IN 244551.

UPL approached the Delhi High Court in the case of UPL Limited v. Modern Insecticides Limited, stating that, its patents were being infringed by Modern Insecticides Limited (the Defendant). It alleged that the Defendant was exporting and intending to manufacture products which are covered by patent no. IN 244551 for the domestic market. UPL was able to establish that the Defendant’s products used a composition identical to that disclosed under patent no. IN 244551.

The Court was of the opinion that irreparable loss will be caused to UPL if its rights are not protected. It noted that the Defendant had not yet commenced production and therefore, vide an interim injunction, restrained it from doing so until the next date of hearing, i.e. September 4, 2020. The Court also asked the Defendant to disclose the quantitative composition of the impugned product which it has, allegedly, sold under the brand name 'FINISHER' and that which is lying at its manufacturing facility.

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Delhi High Court stays order of Trade Mark Registry entertaining inordinate delay

In a recent decision of M/S Aman Engineering Works v. Registrar Trade Marks, Trade Marks Registry, New Delhi & Anr.1 ,the Delhi High Court has stayed the orders of the Senior Examiner of Trade Marks Registry, which had condoned a delay of over 17 years to review certain trademark applications.

M/S Aman Engineering Works (‘Aman Engineering’) is the registered proprietor of the word mark 'KRANTI' in Class 9. M/s B.M. Meters Private Limited (‘BM Meters’) applied for registration of the word mark 'RITE KRANTI' in Class 9 in 1994 and ‘ B&M KRANTI’ in 1997. Both times, BM Meters did not respond to the objections raised or attend the hearings at the Registry, and the marks stood ‘Abandoned’ after a few years.

In 2019, after a delay of over 16 years from the order of the Registrar to Abandon the applications, B.M. Meters approached the Registry for review of its decision. Surprisingly, the Senior Examiner at the Trade Marks Registry, ordered that it would review the 2 applications. Consequentially, Aman Engineering approached the Delhi High Court against the orders. Aman Engineering claimed that the Senior Examiner has no jurisdiction to condone a delay which is beyond the statutory period of limitation of 30 days, extendable by another 30 days (in total 60 days), as per Rule 119 of the Trade Mark Rules, 2017. It contended that it is not open to authorities to condone delay if it is beyond the maximum period, stipulated by a statute. Aman Engineering relied upon the judgment of the Supreme Court in New India Assurance Co. Ltd. vs. Hilli Multipurpose Cold Storage Private Limited 2, wherein it was held that where a statute prescribes an outer limit for a particular action to be undertaken, such outer limit cannot be increased by the Tribunal or a Quasi-Judicial Authority, more so, if no provision in the statute confers upon such authority the power to do so. Aman Engineering contended that the Senior Examiner’s orders were detrimental and prejudicial to its rights.

B.M. Meters refused to agree with Aman Engineering’s contentions. It argued that the objections to the registration were invited by the Examiner, Aman Engineering had already filed its objections in accordance to the law and will be provided every opportunity to contest its case before the Examiner. Hence, no prejudice was caused to it.

The Court held that the issue of the jurisdiction of the Senior Examiner to condone the delay beyond a maximum period of 60 days provided under the Rules, requires its consideration. It would also have to test how the delay of over 16 years has been condoned and the review applications were allowed. However, since Aman Engineering was able to make a prima facie case in its favour, the Court stayed the impugned orders passed by the Senior Examiner till the next date of hearing i.e. October 13, 2020.


1C.M.(M) 388/2020 – 23rd July 2020

22020 SCC OnLine SC 287

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Parle’s Appy Fizz v. Walmart’s Fizzy Apple

Parle Agro Pvt. Ltd. (Parle) has sued the retail giant Walmart India (Walmart) at the Bombay High Court for violating its trademark “Appy Fizz”. Parle sought injunction against Walmart to restrain it from using the mark “Fizzy Apple”.

Parle was founded in the year 1984 and has numerous beverages such as Frooti, Appy Fizz, Frio, in the market. Parle has registered the word mark APPY FIZZ3 and device mark of APPY FIZZ (DEVICE OF APPLE)4 , in Class 32. Parle launched Appy Fizz in 2005 and is currently the market leader in India in the sparkling juice’s segment.

Parle contended that Walmart is manufacturing and selling its product under the mark “Fizzy Apple” using font style and colour scheme which is nearly identical to that of Parle’s Appy Fizz. Parle further contended that Walmart is trying to ride on its long standing goodwill and reputation. On the other hand, Walmart in its response contended that Fizzy was a common descriptive word and hence no one could claim monopoly over it.

A single judge bench of Justice B. P. Collabawala granted an interim injunction restraining Walmart India from infringing Parle’s mark till further order.


3TM No. - 1668879

4TM No. 2106067

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Maha Movie and Manoranjan TV restrained from broadcasting films "Jung" and "Kartavya”

Zee Entertainment Enterprises Limited (Zee) approached the Bombay High Court5 seeking an injunction against Teleone Consumers Product Pvt. Ltd (Teleone) and Creative Channel Advertising and Marketing Pvt. Ltd. (Creative) for infringement of its copyright in two films viz. "Jung" and "Kartavya" (the films).

Zee is engaged in the media and entertainment business, inter alia, from distribution and broadcasting of films to viewing on television and owns several leading Indian television channels such as "Zee TV", "Zee Cinema", "Zee Marathi", and "Zee Talkies". It acquired exclusive rights to broadcast/publish the films on television and/or DTH connections.

Zee alleged that sometime in June 2020, it found that Teleone and Creative were broadcasting these films on their television channels "Maha Movie" and "Manoranjan TV" respectively, without any authorization from Zee. When Zee collected data from the Broadcast Audience Research Council, it was informed that Teleone and Creative were repeatedly broadcasting these movies on their channels. Zee submitted that such unauthorized broadcast/ exploitation by the defendants violated its copyright in the films.

The Court agreed that Zee had made out a prima facie case for the grant of interim injunction and if an injunction is not granted, it will suffer irreparable damage and injury. The Court also held that there are no equities in favour of Teleone and Creative and the balance of convenience is in favour of Zee.

Hence the Court granted an interim injunction restraining Teleone and Creative from exploiting/publishing/broadcasting the films in any manner or any audio or video clip thereof, on their channels or any other platform/ media pending the final disposal of the suit.


5Zee Entertainment Enterprises Limited vs. Teleone Consumers Product Pvt. Ltd. and Ors - MANU/MH/0795/2020

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The curious case of Lootcase!

On July 30, 2020, the eve of the scheduled release of the film Lootcase, scriptwriter Mr. Vinay Vats approached the Delhi High Court seeking injunction to restrain the film from being released. The Court dismissed his plea and warned that plaintiffs should not approach the courts seeking injunctions at the eleventh hour. This decision has 2 parts: first, the copyright infringement claims; and second, the filing of suits at the eleventh-hour.

Mr. Vats claimed that the script of Lootcase was a copy of his script for the film Tukkaa Fitt6 .He contended that he came to know about Lootcase only on July 18, 2020 and noted substantial similarities between Lootcase and his script. Mr. Vats stated that his script was registered at the Film Writer's Association, Mumbai in 2011. The production of the film was completed in 2012 but its release was cancelled due to the death of the film’s producer. He also stated that the trailer of the film was in public domain ever since March 2011.

Fox Star Studios, producer of Lootcase and the defendant in this case, claimed that the promos of its film are in the public domain since June 2019 and Mr. Vats, who is a scriptwriter, in the film industry cannot profess his ignorance thereof.

Fox Star Studios also stated that the script of Tukkaa Fitt, on which Mr. Vats has based his claim, was never in the public domain. It came into the public domain only when it was filed as an annexure with the present plaint. As per Fox Star Studios, the film Lootcase was finalized much before the filing of the present plaint. Thus, there is no chance of it being copied. It further contended that Mr. Vats has based his claim on the trailer of his film, which never metamorphosed into a full film. Hence there is no cause of action and his plaint is liable to be dismissed.

It also severely criticized the actions of the Mr. Vats for approaching Court at the last minute with a view to arm-twist Fox Star Studios.

No copyright in any idea theme or plot per se

The Court referred to the landmark decision of R.G. Anand7 , which is generally regarded as a classic when it comes to copyright claims in cinematograph films wherein it has been explained that, “if the theme is same but is presented and treated differently so that the subsequent work becomes a completely new work, no question of violation of copyright arises…. Where the theme is the same Where however apart from the similarities appearing in the two works there are also material and broad dissimilarities which negative the intention to copy the original and the coincidences appearing in the two works are clearly incidental no infringement of the copyright comes into existence…”

The Court held that there is no copyright in any idea, subject matter, theme or plot, and violation of copyright is confined to the form, manner and arrangement and the expression of the idea by the author of the copyright in the work. Thus, the plot of a film cannot be said to be the exclusive province of Mr. Vats. Furthermore, the trailer of Lootcase has considerable features which are missing in Mr. Vats’ script.

Eleventh Hour Filing

The Court remarked that the suit had been deliberately filed at the eleventh hour, which according to it, “appears to constitute yet another example of the misuse of the judicial process”.

The Court stated that Mr. Vats has acknowledged that the trailer of the film Lootcase was released on 16th July 2020. It is also known that the promos of the film had been in the public domain since June 2019. Hence there is no justification for Mr. Vats to have approached this Court on the eve of the release of the film.

The Court observed that in such suits, both parties have to argue at length, the Court has to dictate the judgment and then the judge and his/her staff have to work till late hours to finally hand over the injunction order to the parties. All of this happens on the same day, at the cost of the time deserved by the other innocent litigants who are waiting for their turn. This is unfair and, plaintiffs who have deliberately waited till the last minute, must face the consequences of a failed gambit of this kind.

The Court further stated that such last-minute filings are done with the intent to pressurize the defendants into making a statement of some kind or, worse yet, to pressurize the Court into passing some hurried order for want of time with little or no assessment on merits.

In such a case, there is no vestige of a prima facie case for grant of ad-interim reliefs, as the balance of convenience cannot be said to be favouring the plaintiffs, it is only the defendants who would be at a loss if their film is not released on the scheduled day. Hence, the Court dismissed Mr. Vats’s application praying stay on release of the film.


6VINAY VATS VS FOX STAR STUDIOS INDIA PVT. LTD. & ANR CS(COMM.) 291/2020

7RG Anand v. Delux Films AIR 1978 SC 1613

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Ministry of Defence issues a letter to CBFC, objecting depiction of Indian Army in web series

The Ministry of Defence (MOD) has issued an advisory letter dated July 27, 2020, to the Central Board of Film Certification (CBFC) objecting the depiction of Indian Army Personnel and the army uniform in a distorted manner in web series particularly- XXX- Uncensored (Season 2). XXX Uncensored Season 2 is a web series released on AltBalaji. The web series features a scene wherein an army uniform is ripped off a character. The scene was widely criticized for defying national values by netizens. FIRs were also filed against the producer.

Consequentially, this letter has been issued by the MOD advising production houses to obtain a ‘No Objection Certificate’ from MOD before broadcasting any movie/ web series based on the Indian Defence Forces. The letter also advises that producers the need to ensure that any incident which distorts the image of the Defence Forces or is likely to hurt their sentiments should be avoided. A similar letter was sent by the MOD to the Advertising Standards Council of India (ASCI) regarding the depiction of Army Personnel chewing pan masala.

The letter has further been copied to the Ministry of Electronics and Information Technology (MEITY), Ministry of Information and Broadcasting which regulates Television Content and Additional Directorate General of Public Information of the Directorate General of Military Intelligence.

The Emblems and Names (Prevention of Improper Use) Act, 1950 also prohibits the improper use of the coat of arms, medals, badges, and decorations instituted by the government.

Effect of the letter

The letter would only act as an advisory and will not have any binding effect as the CBFC does not have any power over content streamed vide web series released over Video-on-demand streaming platforms like AltBalaji, Netflix, and the like. CBFC only governs the censorship of films intended to be released in theatres and television. Section 3 of the Cinematograph Act, 1952 which provides for the establishment of the Central Board of Film Certification (CBFC) also defines the purpose of its establishment as “to certify films which are intended for public exhibition”. The term “public exhibition” has not been defined anywhere under the Cinematograph Act or its rules and thus there is a grey area whether public exhibition would only apply to films/documentaries/serials available for watching in public places like theatres/multiplexes or it would also include video content available to the public for watching whether in public or private

As far as TV serials are concerned, it has explicitly mentioned under Rule 6(n) of the Cable Television Network (Regulation) Rules, 1994, that cable operators are required to ensure that the films that can be accessed by their viewers should be certified from CBFC.

However, at the moment, we do not have any Rules which require CBFC certification for content streamed on VOD platforms, hence CBFC Rules are not applicable on VODs.

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Hidden Meanings in Trademarks!

All the avid travellers are conversant with the AirBnB. Airbnb is an American company which provides temporary rental accommodation globally. The concept was one of a kind and instantly appealed to budget travellers. In 2014, they launched their logo and called it ‘The Bélo’. Though the Bélo looks simple, it intends to convey 4 aspects: People, Places (location), heart (love) and the letter ‘A’. 8

Adorable isn’t it?

Once you see it, you can’t unsee it!

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‘Know the Real India’

As a part of our knowledge in India dissemination process, we would be starting a new series called - ‘Know the Real India’.

Historically, India had various dynasties that most people, except historians, have not even heard of. These include – the Mauryans, the Saptavahanas, the Guptas, the Pandyas, the Cholas, the Pallavas, the Chalunkyas, the Ahoms and many others.

Most Indians cannot even name the capitals of these kingdoms or the illustrious Kings of each of these Dynasties which governed India when India was the most prosperous country in the world.

Hopefully these series will educate the present generation of the true history of India.


8https://blog.atairbnb.com/belo-report-new-airbnb-symbol-infographic/

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