From the desk of Dr. Mohan Dewan | Assisted by: Adv. Aboli Kherde, Adv. Sachi Kapoor & Adv. Shubham Borkar
In furtherance of the National Intellectual Property Rights Policy of the Government of India, 2016, on Saturday, September 26, 2020, the Department for Promotion of Industry and Internal Trade (DPIIT) and Ministry of Industry, Business and Financial Affairs entered into a Memorandum of Understanding (MOU) on Intellectual Property Cooperation with Denmark to increase cooperation in the field of intellectual property rights (IPRs) by exchanging best practices and collaborating in training programs. In June 2020, the countries had signed an MOU for energy cooperation.
As a part of the MOU, India and Denmark will create a biennial work plan for implementing their objectives with respect to IPR.
As per the official website of the Ministry of Foreign Affairs, Denmark, “India and Denmark are working towards building a long-term technical partnership in the field of Intellectual Property Rights. Through this cooperation between the Danish Patent and Trademark Office and the Indian Patent Office, both countries are committed to sharing best practices and building mutual capacities in areas such as quality management systems, commercialization of IP and awareness raising and outreach.”
The MoU aims at increasing co-operation and automation between the 2 countries with respect to Intellectual Property by way of exchanging best practices, experiences know-how etc. in the field of IPR. The countries will also include training programs and exchange of experts, as a part of their biennial work plan for creating awareness with respect to IPR amongst stakeholders such as authorities, businesses, and research and educational institutions of both the countries.
Popular search engine Google removed Paytm for a few hours from its Play Store on September 18, 2020 citing violations of Play Store’s gambling policies. Google stated that Paytm “contains content that doesn’t comply with the Gambling policy as it offers games with loyalty (e.g. engagement or activity) points that (1) are accrued or accelerated via real-money purchases which (2) can be exchanged for items or prizes of real-world monetary value.” This removal happened a day before the commencement of IPL 2020.
Google claimed that its policies do not allow online casinos or any kind of unregulated gambling apps that facilitate betting on sports. It stated that it notifies the developer and removes an app when it violates Google’s policies. In cases of repeated policy violations, it also resorts to serious actions like terminating the app’s Google Play Developer Account. Google alleged that Paytm, through its umbrella app and its gaming subsidiary app viz. Paytm First Games, is promoting ‘sports gambling’, thus violating India’s gambling laws as well as Google’s policies.
Google has also removed the fantasy sports app Dream11 as it allowed users to win actual money. Dream 11 is the title sponsor of the IPL tournament this year.
Paytm, which is one of the biggest competitors of Google Pay in the Indian digital payments space, claimed that it received no prior warning from Google and also alleged that Google is making and implementing arbitrary policies that are over and above Indian laws.
Paytm explained that through its campaign ‘Paytm Cricket League’ users could collect cricket stickers and scratch cards to earn UPI cashback. Paytm argued that a UPI cashback cannot be called an ‘online casino’. It applies this offer on recharges, utility payments, UPI money transfers, and adding money to Paytm wallets. When a certain number of stickers are collected, users could win cashback. In addition to this, Paytm also alleged that Google itself is already running similar campaigns in India through its game ‘Tez Shots’. Paytm highlighted Google’s double standards, as it was allowed to promote its campaign on YouTube, but not on Paytm. It claimed that it is being “singled out” and “targeted” by Google.
Paytm stated that Google had written to it on 3 occasions regarding some concerns relating to a separate matter of Paytm First Games’ promotion through the Paytm app. Paytm clarified that it disagreed with the allegation that its apps are breaching Google’s policy and that it also complied with the diktat that barred it from promoting its gaming subsidiary.
This brings us to the burning question that whether foreign players like Google abuse their dominance and dictate the terms, build entry barriers, monopolize the trade channel? Also, do we need our own search engines, digital distribution service to support Indian players, more particularly small time Indian players in the technology market?
William James Murray a.k.a. Bill Murray, is an American actor, comedian, and writer. He saw fame with his presence on the popular show ‘Saturday Night Live’. The actor owns a golf apparel company named ‘William Murray Golf’.
The Doobie Brothers are an American Rock band which was popular especially in the 1970’s. The Doobie Brothers found that Bill Murray was promoting his golf apparel brand using the band’s classic hit “Listen to the Music” of course without the band’s permission. The legal manner to combat the situation is sending out a legal notice, however, the band ensured that the legal notice matched the ‘cool image’ of the band. William Murray Golf’s latest shirt is named Zero Hucks Given, a play on Huckleberry Finn, which is one of William’s favourite characters! However, he did not seek the band’s permission before using their song. The Doobie Brothers indicating the violation in their notice wrote:
“It’s a fine song. I know you agree because you keep using it in ads for your Zero Hucks Given golf shirts. However, given that you haven’t paid to use it, maybe you should change the name to ‘Zero Bucks Given.'”*
We have reproduced below the contents of the letter addressing William Golf Murray on behalf of the Doobie Brothers:
“Dear Mr. Murray:
We’re writing on behalf of our clients, the Doobie Brothers. The Doobie Brothers perform and recorded the song Listen to the Music, which Tom Johnston of the Doobie Brothers wrote. It’s a fine song. I know you agree because you keep using it in ads for your Zero Hucks Given golf shirts. However, given that you haven’t paid to use it, maybe you should change the name to “Zero Bucks Given.”
We understand that you’re running other ads using music from other of our clients. It seems like the only person who uses our clients’ music without permission more than you do is Donald Trump.
This is the part where I’m supposed to cite the United States Copyright Act, excoriate you for not complying with some subparagraph that I’m too lazy to look up and threaten you with eternal damnation for doing so. But you already earned that with those Garfield movies. And you already know that you can’t use music in ads without paying for it.
We’d almost be OK with it if the shirts weren’t so damn ugly. But it is what it is. So in the immortal words of Jean Paul Sartre, “Au revoir Golfer. Et payez!”*
Peter T. Paterno
of King, Holmes, Paterno & Soriano LLP”
William Murray then responded to the above notice offering its golf shirts as compensation. The reply is reproduced below:
Mr. Murray and the Doobie Brothers have surely managed to keep the netizens entertained, without even performing!
*We claim no copyright over the contents of the legal notices or the images used. They are used for representational/educational purpose only.
Some might say it is a coincidence, that we bring to you this article on the eve of the birthday of the Father of our Nation: Mahatma Gandhi (October 02, 1869). In India, Khadi was not only a type of cloth, but its spinning in each household marked the start of a movement for becoming self-reliant nation in the hard times of colonization (sounds pretty relatable in these pandemic times also, doesn’t it?!). Khadi is commonly associated with Gandhiji, as he not only spun yarn using the Charkha himself, but also successfully made it a way to spread the feeling of nationalism. It is known throughout the world, that Mahatma Gandhi, or as he is endearingly referred to as “Baapu” in India, had initiated the Khadi Movement, to boycott foreign goods (especially clothing) and generate employment for Indians during the British Raj in India. Even after independence, the Khadi Movement went on, and today is proudly being spread and regulated throughout the country by the Khadi and Village Industries Commission (KVIC). It is a contrasting approach of social and grass root level empowerment of the common man as against capitalism.
*We do not claim any copyright in the image used. It has been used for academic and representational purposes only.
Today, with the Government of India’s initiatives like Go Vocal for Local, Atma Nirbhar Bharat, Make in India, all in full force, there is a general tone of consumers inclining towards indigenous products, instead of foreign brands, which are, at most times, difficult to pronounce! It was recently observed by the Khadi and Village Industries Commission (KVIC) that many sellers on various e-commerce platforms are claiming to be selling Khadi products. The KVIC is a statutory corporation under the Ministry of Micro, Small and Medium Enterprises and is the registered proprietor of the “Khadi India” brand. The KVIC is engaged in the planning, promotion, organisation, and implementation of programs for the development of Khadi and other village industries in the rural areas in coordination with other agencies engaged in rural development.
The KVIC noted that sellers were listing their products as Khadi or those related to Khadi, without having any actual basis of Khadi certification. What may appear as a simple claim of product description, is actually a violation of various statutory rights. Firstly, as per the Khadi Mark Regulations 2013, notified in the Gazette of India in July, 2013, no textile is to be sold or otherwise traded by any person or certified Khadi Institutions as “Khadi” or “Khadi products” in any form or manner without it bearing a Khadi Mark tag or label issued by the Committee under these Regulations. This means that the claim of a product being a Khadi product, cannot be invariably made without the proper authorisation by the Khadi and Village Industries Commission. Secondly, as stated above, KVIC is the registered proprietor of the marks “Khadi”, in more than 27 classes.
The KVIC reportedly issued legal notices to more than 1000 different sellers on e-commerce platforms for misusing the mark “Khadi”. Reports also suggest that 2 of the top market players, Khadi Essentials and Khadi Global were found selling cosmetics in the name of Khadi. In 2018, KVIC filed a suit against Fabindia for misuse of the mark Khadi and selling factory-made cotton clothing as Khadi. KVIC claimed more than INR 500 Crore in damages. The case is presently pending before the Bombay High Court.
What is crucial here, is that this is not a mere violation of rights in a trademark, but also that of the rights of Khadi weavers in rural India, who make a livelihood out of hand-weaving Khadi garments and other local products. Branding any product as Khadi, affects the authenticity of the actual Khadi products and takes away the benefits to which these weavers are rightfully entitled.
Burj Al Arab is the famous luxury hotel in Dubai, UAE, created on an exclusive island owned and operated by Jumeirah Beach Resort LLC (“Jumeirah”). The construction of the hotel is such that it resembles a sail. BURJNOIDA, on the other hand, is an upcoming construction and development project in Noida, UP, India. Designarch Consultants Pvt. Ltd. (“Designarch”) is the registered proprietor of the trademarks “BURJNOIDA” and in Class 37. Designarch also obtained copyright registrations over the drawings of its building plans for the tower to be constructed and named as BURJNOIDA. Jumeirah, has no trademark registration in Class 37, but has registered its mark “Burj Al Arab” in other classes such as 35, 36, 39, 41, 42. It has no other presence in India at all.
Image Source: Delhi High Court’s order: CS(COMM) 366/2020. We do not claim any copyright in the image used. It has been used for academic and representational purposes only
Designarch approached the Delhi High Court: DESIGNARCH CONSULTANTS PVT. LTD. v. JUMEIRAH BEACH RESORT LLC when it received a notice from Jumeirah, stating that Designarch is infringing upon its trademark “BURJ AL ARAB” and device . Designarch sought an injunction against Jumeirah to restrain it from initiating any groundless legal action against it for trademark infringement and/ or passing off.
Designarch, inter alia, claimed that neither did Jumeirah have exclusive rights over a common word like “BURJ”, which literally means Tower, nor was its sail-shaped design of the building unique. It further stated that the logo in which Jumeirah claimed rights and the actual logo used for its luxury resort were different.
The Court observed that Designarch had established a prima facie case in its favour and granted an injunction against Jumeirah restraining it from extending any threat to Designarch in relation to its registered marks/ logos or the design of the building, until the next date of hearing (i.e. January 21, 2020). Jumeirah was also directed to give at least 7 days advance notice before initiating any legal proceedings claiming infringement and/or for passing off of Jumeirah’s marks by Designarch.
Nandhini Deluxe is engaged in running restaurants specialising in South Indian dishes, especially those from Andhra Pradesh. It has been using the trademark NANDHINI for restaurants since 1989 and is the registered proprietor of the marks “NANDHINI”, in Class 42 (as per the classification before the amendment of 2010). It also has copyright registrations for the same .
Nandhini Deluxe approached the Bengaluru District Court seeking an injunction against a newly opened restaurant named “Nandhini Mushroom Family Restaurant”. (‘Nandhini Mushroom’) for using the mark “Nandhini” or such other deceptively similar marks.
Nandhini Deluxe alleged that the adoption of the mark “Nandhini Mushroom Family Restaurant” along with the corresponding trading style by Nandhini Mushroom amounted to infringement and passing off under the Trade Mark Act, 1999. Nandhini Deluxe claimed that the same has been done to encash upon the reputation and goodwill built up by it over the years and that Nandhini Mushroom had no right to use such a deceptively similar mark and trading style for its restaurant.
Nandhini Mushroom appeared for the hearing, however, it did not file any written statement. The Court noted that Nandhini Deluxe is the registered proprietor of the mark and has also proved its prior use with the help of supporting documents. The Court observed that Nandhini Deluxe is into the hotel business since 1989 and has gained goodwill owing to its long and continuous use of the trademark. Further, it observed that Nandhini Mushroom’s use of the word NANDHINI can cause an impression among the members of the general public that the restaurant is associated with Nandhini Deluxe.
In light of the above, the Court granted a permanent injunction in favour of Nandhini Deluxe. Nandhini Mushroom was directed to surrender the entire stock of unused offending bills, stationary, blocks, and the like, to Nandhini Deluxe for destruction. The Court also imposed costs on Nandhini Mushroom. However, it did not award damages as claimed by Nandhini Deluxe, stating that Nandhini Deluxe has not been able to prove either the profits derived by Nandhini Mushroom from its illegal activities or submit sales record to establish the losses.
One of the major additions in the Trademark Rules of 2017, is the mandatory filing of a user affidavit for claiming prior use in a trademark application. This is a way to tackle frivolous registrations by entities and prevent squatting over classes in which the proprietor is not trading. In the Nandhini Deluxe case (“Nandhini”), the Supreme Court held that the registration of a trademark in a class is only limited to the goods and services for which it is registered and used and not for the entire class. In the case of Mittal Electronics vs. Sujata home appliances (p) Ltd and Ors. the Delhi High Court has passed an order on the lines of Nandhini’s ratio, thereby modifying its erstwhile interim order. It allowed Sujata Home Appliances (P) (“Sujata”) Ltd. to manufacture and sell water purifiers, water filters, and RO systems under the mark “SUJATA”, since they were not being manufactured or sold by Mittal Electronics (“Mittal”), the registered proprietor of “SUJATA” under class 11. Mittal had filed a suit for infringement and passing off against Sujata contending that Sujata had allegedly infringed its rights in the mark “SUJATA” and “SUJATA Star” in class 11. The Court granted an ex-parte injunction in Mittal’s favour. Subsequently, Sujata filed an application to modify the interim order passed against it, and prayed that it be allowed to manufacture and sell water purifiers, water filters, and RO systems. Sujata submitted that the mark “SUJATA” was being used since 2008 for selling water purifiers, water filters and RO systems by its Licensor Mr. Rajesh Kumar Bansal. However, this fact was allegedly concealed by Mittal in its Plaint. It stated that Mittal had not used the mark SUJATA for these products under class 11, and was merely squatting over the whole class.
The Court, after hearing both the parties, modified the ex-parte order and allowed Sujata to manufacture and sell only water purifiers, water filters, and RO systems under the mark “SUJATA”. The Court stated that as per the proviso to Order XXXIX Rule 4 of Code of Civil Procedure, 1908 if a party had obtained an ex parte order by concealing material facts, the court could modify its order in the interest of justice. The Court relied upon Nandhini’s case and stated that the registration of a mark in a certain class does not necessarily give rights to the proprietor over the entire class. It only gives rights with respect to said good or service which were being sold/provided under the mark. In the current case, since Mittal was not manufacturing or selling water purifiers, water filters, and RO systems under the mark “SUJATA”, it was not entitled to obtain an interim injunction with respect to these goods.
*We do not claim any copyright in the image used. It has been used for academic and representational purposes only
Dabur is an Indian consumer goods company founded in 1884. Dabur is also claimed to be the World’s Largest Ayurvedic and Natural Health Care Company. The ‘Dabur logo’ depicts a tree which refers to nature, a provider of food, and protection. However, if you look closely, the trunk of the tree depicts 3 human like figures stretching out their arms, rejoicing achievement. The broad tree-trunk also represents stability and the multiple branches represent growth.
Sikkim’s famous red hot cherry pepper “Dalle Khursani” has earned its Geographical Indication (GI) tag from the Department for Promotion of Industry and Internal Trade. Geographical Indication Tags, are indications, which identify a particular product to a territory from where it derives a certain quality and/ or reputation. Once a product is given a GI Tag, other parties, which are not actually associated with that geographical area, can be restrained from using the same Geographical Indication for their products.
We do not claim any copyright in the image used. It has been used for academic and representational purposes only
The amount of heat in chillies is measured in Scoville Heat Unit. Dalle Khursani has a range of 1,00,000 to 3,50,000 SHU (Scoville Heat Units) and is considered one of the hottest chillies in the world. Another pepper called ‘Bhut Jolokia’ grown in the neighbouring states of Arunachal Pradesh, Manipur, Assam, and Nagaland has a SHU range of 8,55,000 to 10,41,427. Dalle Khursani is well known for its unique flavour and high pungency. It belongs to the family Solanaceae and genus Capsicum. Its plant grows up to 100-130 cm height in an open field and 150-180 cm height in greenhouse conditions.
Dalle Khursani is added to sauces, pickles, and pastes to increase their pungency and make them more flavourful. It is also known for its medicinal properties. It is rich in vitamin A, vitamin E, vitamin C, and Potassium, while low on Sodium. A 100gms of fresh Dalle Khursani has 240 mg of vitamin C (5 times higher than that present in an Orange), 11,000 IU of vitamin A, and 0.7 mg of vitamin E.
The GI application was filed by the Guwahati-based North Eastern Regional Agricultural Marketing Corporation Limited (NERAMAC). The Sikkim Horticulture Department’s Secretary, Mr. M.T. Sherpa, reportedly stated in an interview, “With GI, the crop will have global recognition and the marketing of the product will be beyond the national borders.”. Last year, Sikkim produced around 250 tonnes of Dalle Khursani. Sherpa said, “The figure is certain to go up this year. Government intervention by way of providing seeds, nutrients, and other items will definitely boost production.”
- Adv. Chinmay Pawar
Spread across 3,287,263 sq. kilometers and being the 7th largest country in the world by landmass, India showcases some of the most breathtaking geographical phenomena in the world. India is surrounded by 3 main waterbodies, the Arabian sea in the west, the Bay of Bengal in the east and Indian ocean in the south and is blessed with over 7500 kilometers of coastline.
Recently, on the eve of International Coastal Clean-Up Day, the Union Environment Ministry of India, announced its decision to recommend 8 Indian beaches for the coveted ‘Blue Flag’ International eco-label.
What is a ‘Blue Flag Beach’?
Blue Flag beaches are considered the benchmark for clean beaches in the world. The ‘Blue Flag’ is a certification that can be obtained by a beach, marina, or sustainable boating tourism operator and serves as an eco-label. The certification is awarded by a Denmark-based non-profit organization named Foundation for Environmental Education (FEE), which sets 33 stringent criteria under 4 major headings that the applicants must meet and maintain. It is awarded annually to beaches and marinas in FEE member countries.
Indian Beaches recommended for the Certification by the Union Environment Ministry:
Following are the geographical locations of the beaches on Google Map.
We do not claim any copyright in the image used. It has been used for academic and representational purposes only
In its notification issued in July 2019, the Union Environment Ministry had identified the following beaches in India for Blue Flag certification apart from abovementioned beaches:
It would be interesting to see whether these beaches receive Blue Flag Certification. Watch this space for more updates.
Pushyabhuti Dynasty or the Vardhana Dynasty
- Adv. Chinmay Pawar
In the modern day State of Haryana, lie some of the important locations where history took its turn for better or for worse, Kurukshetra and Panipat are amongst them.
Near Kurukshetra, in Sthaneshvara i.e. Thanesar, Harshwardhana was born to king Prabhakar Vardhana, the founder of the Pushyabhuti Dynasty or the Vardhana Dynasty. After the death of Prabhakar Vardhana, Harsha’s elder brother Rajyavardhana ascended the throne of Sthaneshvara kingdom. Rajyavardhana lost his life in an attempt to free his sister, who was imprisoned by the rival kingdom of Kannauj. Thereafter, the 16-year old Harshavardhana ascended the throne of Sthaneshvara kingdom in 606 AD. Harsha vowed to avenge his brother’s death and rescue his sister. For this, he formed an alliance with Bhaskaravarman, the Kamarupa king. Harsha and Bhaskaravarman marched against the kingdom of Kannauj. Ultimately, the king of Kannauj left for Bengal and Harsha subdued his kingdom. On acquiring Kannauj, Harsha united the two kingdoms of Thanesar and Kannauj and moved his capital to Kannauj.
After the fall of the Gupta Empire, North India was divided into many small kingdoms. Harsha was able to unite many of them under his command. He had Punjab and Central India under his control. He also annexed Bengal, Bihar and Odisha. However, Harsha’s plans to conquer southern lands were hampered by the Chalukya king Pulakeshin.
Xuanzang, a Chinese Buddhist monk, scholar, traveler, and translator visited India during Harsha’s reign. He has praised Harsha and his empire. He has also admired Harsha’s generosity and administration of justice.
Like many other kings and emperors of India, Harsha was a great patron of arts. He himself was an accomplished writer. He is credited with the Sanskrit works Ratnavali, Priyadarshika and Nagananda. Banabhatta (बाणभट्ट) or Bana was his court poet and he composed the Harshacharita, Kadambari and Parvatiparinay. Apart from his patronage of arts, Harsha generously supported the world renowned Nalanda University. It is believed that ¼ th of all the taxes collected in his empire were used for charity and for cultural purposes.
Harsha is considered as the last king to rule over a vast empire in India before the Islamic invasions over India.