From the desk of Dr. Mohan Dewan | Assisted by: Adv. Aboli Kherde, Adv. Sachi Kapoor & Adv. Shubham Borkar
Taylor Swift is no stranger to legal matters and lawsuits. She has a history of being extremely protective with regards to the intellectual property rights in her musical works and for the heavy compensation she receives for their violation. In the past few years, she won a civil case against an ex-DJ with regards to a sexual assault incident. Further, Swift even had to re-record six of her albums in an effort to regain control over her creations, after the rights to them were sold without the artist’s consent. However, now her legal team is countering a lawsuit made by Utah’s Evermore Park (Evermore Park).
Taylor Swift wrote her ninth studio album titled, Evermore during the lockdown, which blew her fans away upon its recent release in December 2020. Evermore Park describes itself as an ‘experience park’ in Utah which is a European-style fantasy themed village where its performers play several fantastical characters. Following the release of Evermore, it filed a lawsuit on February 2, 2021, against Swift for the use of its mark “Evermore”.
Taylor Swift and her company namely, TAS Rights Management and her merchandising company namely Taylor Nation were made parties to the suit. It was alleged that her Evermore album and the merchandise accompanied by it infringed the theme park’s copyright in it.
Evermore Park has made allegations that the name of the album has confused visitors and thereby harmed the reputation of the theme park on the search engines. It has resulted in ordinary people believing that the music album was connected to the theme park. In addition to the alleged trademark infringement, the lawsuit of Evermore Park also alleges use of explicit lyrics and marketing of goods using vulgar terms in the Evermore album and merchandise. Evermore has claimed damages over $2,000,000 from Swift including and is seeking an injunction with regards to any further trademark violations.
Now, TAS Rights Management (Swift’s company) has countersued Evermore by filing its own federal lawsuit on February 22, 2021, alleging that the park has played the songs of Taylor Swift at its premises without any authorisation or licensing since 2018 and have thus violated the Copyright law. Reportedly, according to the lawsuit filed by Swift’s legal team, Evermore is also said to have played, creations of Katy Perry, Billy Joel Abba, The Beatles, Queens, Britney Spears, and Whitney Houston, without proper licenses for the same. Swift’s lawsuit further alleges, that Broadcast Music, Inc. (hereinafter BMI), a US based performance rights organisation which protects the rights to Swift’s songs, has sent multiple cease-and-desist notices to Evermore Park in the past informing it about the copyright infringement. However, it has allegedly continued to benefit from the unauthorised, royalty-free public performances of Taylor Swift songs.
After hearing of Swift’s lawsuit, Evermore Park applied for retroactive licences for the music performances. However according to Swift’s lawsuit, it is a “thinly-veiled” attempt by Evermore Park to contact BMI now and try to pay for the past performances. It is an attempt to fabricate and justify their intentional copyright infringement which has been unabated ever since the opening of the Evermore Park back in 2018.
A surprising fact was brought to light by Swift’s counsel that they were informed regarding the alleged copyright infringement by Evermore Park after a former volunteer of the same tipped them about the public performance of Swift’s music without license on February 3, 2021 which happens to be one day after the filing of the initial lawsuit by Evermore Park.
Taylor Swift currently seeks a jury trial & an order from the court for Evermore Park to pay damages for the injury caused to the goodwill & reputation of the artist and thereafter be permanently restrained from playing any of her works. On the other hand, Evermore Park has not made any kind of statement with regards to the countersuit.
In March, 2020, an “invite only” social media mobile application was launched. The application is different from the existing social media apps, since it is an audio only app, where people from across the world, sharing similar interests, can come together and discuss over a topic of their choice or merely listen to others talking and discussing. The application is developed by Alpha Exploration Co. (hereinafter “Alpha”), and an application for registration of the trademark ‘Clubhouse’ is filed at the USPTO in the name of Alpha. The trademark ‘Clubhouse’ stands registered across multiple jurisdictions including in India3 in the name of Alexander Frederiksen. The app has garnered immense popularity in the past year and is termed as the ‘latest craze’. The app was initially launched only on iOS, and was made available on Google Play only in the second week of May, 2021.
SBS Consulting Group (hereinafter “SBS”) is a consulting firm for sports and assists members in the sports community in networking. It also provides mentorship and career services related to sports. SBS launched its brand ‘THECLUBHOUSE’ in November, 2018. SBS also has a website with the URL: https://clubhouse.sportsbusiness.solutions.
Below are, inter alia, the ‘LIVE’ applications of the respective parties at the USPTO:
THECLUBHOUSE bearing serial no. 88455102 claiming use since November 14, 2018
|CLUBHOUSE bearing serial no. 90161839, claiming use since February 14, 2018|
SBS has filed a trademark infringement suit at the District Court of Arizona against Alpha for the audio based social media app named CLUBHOUSE. SBS claims rights in the mark ‘Clubhouse’ and has stated in its complaint that the defendant seems to have willfully adopted its mark.
As per preliminary observations, both marks are filed in the same class and that too for social media portals. Further, as per the ongoing discussions, it is believed that the mark ‘clubhouse’ is in itself a weak mark. As per the Oxford dictionary, the mark ‘clubhouse’ is defined as: a building used by a club, especially a sports club.
Additionally, the concept of ‘reverse confusion’ is being discussed.
‘Reverse Confusion’: It is a phenomenon when a younger/junior mark due to widespread marketing and promotion gains immense popularity and the consumers are likely to believe that the goods/services being sold/rendered under the senior/prior mark is associated to the goods/services being sold/rendered under junior mark.
Stay tuned for more updates on the case!
The Patents Act 19701 provides for grant of a compulsory license in the following cases: in case of national emergencies, in circumstances of extreme urgency, or in cases of non-commercial public use. If the Government of India is satisfied that such circumstances exist, a notification can be issued for granting compulsory license in respect of a patent in force.
Natco Pharma Limited (Natco), an Indian pharmaceutical company, filed an application with the Controller of Patents on 3rd May, 2021 for obtaining a compulsory license for the drug, ‘Baricitinib’, the patent for which was granted to Incite Holdings Corporation on 5th July 2018. The E-register of the Indian Patent Office records its license agreement with Elly Lily in July 2018 for marketing ‘Baricitinib’. Elly Lily markets the drug in the name of Olumiant which is generally used for the treatment of rheumatoid arthritis.
Natco’s application refers to studies that show a combination of the drugs Baricitinib and Remdesivir is a more effective treatment against COVID-19. It also refers to US FDA’s approval for emergency use and authorization of the combination drug on 19th November 2020. Natco also cited remarks of the Delhi High Court for the use of Baricitinib for treatment against the Corona virus.
In order to prove that Natco has done enough homework, it submitted a report which showed bioequivalence with Olumiant. On 29th April 2021, it also obtained ‘emergency use authorisation’ for the combined drug from the Drug Controller General of India (DCGI) .
In the application, Natco has stated that less than 9000 tablets were imported in 2019 and 2020 and the cost per tablet worked out to be around INR 3230 (approx. USD 44). The application refers to the fact that more than 3 million people are currently undergoing treatment against COVID-19 in India and in case the combination of Baricitinib and Remdesivir is to be used for the treatment, the number of tablets of the former available in the market is barely enough to treat even a few hundred people. The Application further proposes to manufacture the drug at an extremely low price of INR 15/- to 30/-, inclusive of the 7% royalty payable to the patent owner. Natco, in its terms and conditions for the grant of compulsory license mentioned in the application, that it has agreed to give preference to patients in the economically weaker sections, government welfare schemes, and those located in comparatively remote areas of the country. It has also committed to provide the drug free of cost in deserving cases.
Covid-19 has been recognized as a pandemic and the second wave has been particularly severe for India. India has pleaded for IP waiver at the WTO and it appears that the same shall be taken up for discussion. The Supreme Court of India and the Delhi High Court have asked the Government of India to consider granting compulsory licenses. Now the onus lies with the Government of India to accept whether the circumstances of: national emergency, extreme urgency or public non-commercial use, exist.
Natco seems to have ticked all the necessary boxes for the grant of compulsory license. It has made a smart move by filing for compulsory license under Section 92 instead of Section 84 of the Patents Act, 1970. The grounds for the grant of compulsory license under Section 84, inter alia, includes non-fulfilment of reasonable requirements of the public with respect to the patented invention, or non-availability of the patented invention to the public at a reasonably affordable price. These grounds seem to be applicable in the case of Olumiant and any interested person could have applied for the grant of compulsory license under Section 84. However, such interested person would have had to slug it out with the patent owner, whereas in case of an application for the grant of a compulsory license under Section 92, it is the Government of India which can take the call under special circumstances. Natco has wisely chosen the latter option.
1 Section 92(1) 92(3) of The Patents Act 1970.
Red Bull AG (hereinafter ‘Red Bull’), a wholly owned subsidiary of Red Bull GmbH, is known across the globe for its energy drinks. Red Bull has gained immense popularity in India too. The brand is easily spotted at retail stores for a. its mark ‘RED BULL’, b. a logo depicting 2 bulls facing one another, c. a whole sun in the background, d. the can of the drink bearing blue and silver trapezoid, resulting in the mark looking like this: .Each aspect described above is individually registered under the Trade Marks Act, 1999 in classes, inter alia, 30 and 32. The mark has also gained the status of a ‘well-known mark’ in India, listed here.
Red Bull filed a case2 against Bakewell Biscuits Private Limited (hereinafter referred to as ‘Bakewell’) at the Hon’ble High Court of Delhi, on the grounds of trademark infringement and passing off.
Bakewell adopted a mark deceptively similar to in which it merely replaced the ‘bulls’ with ‘horses’ in addition to adopting an identical colour scheme and replicating the blue-silver trapezoid, resulting in the mark to look like: . Bakewell is allegedly selling ‘Energy candies’ under the above mark. Red Bull, in its plaint, also stated that it has ‘Opposed’ Bakewell’s trademark application bearing no. 4327842.
The Court observed that, when the two products i.e. Red Bull Energy Drink and the Red Horse Energy candies are placed on the shelves of retail shops, the consumers are likely to believe that Bakewell’s candies emanate from the former in view of the similarity in the packaging and the identical colour scheme. It is important to note, that a substantial population in India does not read English and tend to purchase products on the basis of ‘packaging’.
In view of the merits in the case, the Court on May 18, 2021, granted an ex-parte ad-interim injunction against Bakewell restraining them from using the mark or any other mark deceptively similar to Red Bull’s mark.
In view of the restrictions issued due to the ongoing pandemic, the Court has currently not issued directions upon the application for Local Commissioner and has kept it pending for the time being.
Kamdhenu Limited (“Kamdhenu”) and Aashiana Rolling Mills Limited (“Aashiana”) are both manufacturers of steel bars. These steel rods are those which are used for construction of buildings and monuments in creating the core structures with cement.
Kamdhenu has a registered design for its steel bars with a surface pattern of double ribs bearing registration No. 250968 in Class-25-01.
In June 2017, Kamdhenu alleged that Aashiana was selling steel bars of an identical design under the name “Friends 500 HD TMT Bars” thereby fraudulently imitating its registered design. When Kamdhenu filed a suit at the Saket District Court, New Delhi, the District Court granted an ex parte order of injunction, and also appointed a local commissioner to inspect Aashiana’s premises and seize the infringing goods.
Later the suit was transferred to the Delhi High Court and the ex parte ad interim order was confirmed by a Single Judge bench. Aashiana had averred that the design adopted by it was based on universally accepted and adopted standards. Aashiana appealed before the Division Bench of the High Court. The Division bench set aside the order of injunction. A special leave appeal filed by Kamdhenu was rejected by the Supreme Court.
In the meanwhile, Aashiana filed its written statement stating that Kamdhenu’s registered design was not new or novel, but was itself copied from prior published standards, most significantly British Standard (BS 44449:2005, category B500C). It contended that the design was well known since 1984. It also stated that the double ribbed pattern on the steel bars is a functional element, used to create a strong mechanical lock between concrete and the reinforcement bars. Aashiana argued that since the standards for the rods were already published, Kamdhenu’s design was not novel and hence the registration needed to be cancelled and this suit be dismissed.
Kamdhenu stated that the specific angles adopted by it in the ribbed pattern were, not present in any standards and that it was these very angles which were copied by Aashiana.
The Court noted that Kamdhenu’s registered design does not mention the particular angles of 48 degrees and 65 degrees at all. In fact, as mentioned in its representation sheets, novelty is claimed in the ‘surface pattern’ marked in the images at A and B (see figure above).
The Court also noted that as per the Designs Act, a design should be discernible to the eye alone. Such minute angle specifications, as claimed by Kamdhenu cannot be distinguished from the ones published in the standards by the naked eye.
The Court also observed that the particular angles were not protected by the design registration. Interestingly, Kamdhenu’s own website mentions that it conforms with the British B500 standards! The Court noted, “Such an assertion itself indicates the prevalence of the design elsewhere in the world, which is sufficient to attract the prohibition contained in Section 4(b) of the Act.”
The Court held that since the design was published prior to its registration, the registration is therefore to be cancelled and the suit be dismissed upon these terms as there is no real prospect of success of the suit in favour of Kamdhenu.
• Kaphasura Kudineer for treating mild to moderate Covid 10 infection
The Government of India Ministry of AYUSH has notified that Kaphasura Kudineer and AYUSH-64 have been found useful in the treatment of mild to moderate covid-19 infection.
It is nothing less than a ray of hope for the patients suffering from mild and moderate COVID-19 infection at a time when hospitals are overcrowded and allopathic drugs are short.
Kaphasura Kudineer is a Siddha traditional formulation made from 15 herbal ingredients like ginger, piper, clove, duparsha, haritaki Malabar nut, ajwain, and various others, each of them having unique characteristics of their own.
Kaphasura Kudineer is helpful in curing respiratory illness, boosting lungs, improving respiratory mechanism, and treating respiratory infections. It was subjected to clinical trials for studying its efficacy in COVID-19 patients by Central Council for Research in Siddha (CCRS) under the Ministry of AYUSH and has been approved after seeing its results.
AYUSH 64 is also a polyherbal formulation developed by the Central Council for Research in Ayurvedic Sciences (CCRAS), Ministry of AYUSH. It was developed in the year 1980 for the management of malaria. It has been now repurposed for treatment of COVID-19 owing to its notable antiviral, immune-modulator, and antipyretic properties. The Ministry of AYUSH in collaboration with the Council of Scientific and Industrial Research (CSIR) has recently completed a robust multi-center clinical trial to evaluate the safety and efficacy of AYUSH 64 in the management of mild to moderate COVID-19 patients.
Therefore the Ministry of AYUSH vide its official publication has requested us all to popularize the use of Kaphasura Kudineer and AYUSH-64 in the asymptomatic, mild to moderate covid-19 patients at isolation centers/COVID care centers/COVID health centers and AYUSH hospitals and dispensaries and patients in home isolation.
The Ministry of AYUSH has also made adequate provisions under National AYUSH Mission (NAM) may also be made for this purpose.
• Face mask through which you can eat or drink!
- Design Registrations by Dr. Mohan Dewan
Dr. Mohan Dewan’s recent design for a unique type of face mask was registered at the Designs Office, India. The face mask is unique for it has a zipper at the mouth facilitating the wearer to eat through the mask, without having to remove it completely. It also has a tiny opener at the mouth, for drinking through a straw. The mask design is primarily intended to curb the spread of the Corona virus, and is available for licensing royalty free, in case any manufacturer/ distributor wants to sell it!
• The Pseudo Glucose: Cheat the Cheater
Defence Research and Development Organisation (DRDO) recently released a medicine called, the “Pseudo Glucose”, which is basically a composition that looks like Glucose but is not! This is to combat the multiplication of the Corona virus inside the human body. The virus needs Glucose to multiply and cause severe infection in the host’s body. With the ingestion of Pseudo Glucose, the Virus takes it in, but is unable to multiply. This action helps the formation of enough anti-bodies to help fight the virus! It is being popularly referred to by the quote, “Cheat the Cheater”. The drug, 2-DG has been developed by the DRDO in collaboration with Dr Reddy's Laboratories. It has reportedly received Drugs Controller General of India (DCGI) approval for emergency use after the medicine was found to be safe for treating COVID-19 patients in its phase 2 trials.
-Adv. Chinmay Pawar
The North- East India- Varman Dynasty
North east India remained somewhat aloof from mainland India for ages though its people share strong cultural and social bond with the rest of India and its people.
In ancient India the land of north east India was known as Kamarupa and the kingdom emerged from this part was known as Kamarupa kingdom. The Kamarupa kingdom was ruled by many dynasties till 18th century. The Kamarupa kingdom covered the entire Brahmaputra Valley, North Bengal, Bhutan and northern part of Bangladesh and a few portions of Bengal and Bihar at its zenith of power. Kamarupa was mentioned as a frontier kingdom on Samudragupta's Allahabad rock pillar.
It is believed that Kamrupa kingdom was established by Varman dynasty in the third century. It was established by Pushyavarman, a contemporary of Samudragupta. Initially, on account of Gupta empire’s might, Varman kings accepted Gupta’s suzerainty. As the power of Gupta empire started to decline, Varman kings claimed their authority and grew in power. The Varman dynasty was succeeded by Mlechchha and Pala dynasty.
-Adv. Chinmay Pawar
Lonar Crater Lake: Maharashtra
This geographical phenomenon is located at Buldhana district in north-central Maharashtra.
Location of Lonar lake (Source: Google maps)
Around 52,000 years ago, a meteor weighing 2 million tonnes is said to have crashed into the earth at an estimated speed of 90,000 km/hr. The impact created a crater that was 1.8 km wide and 150 mts deep. The crater is now known as Lonar - named after a mythological demon ‘Lonasura’.
It is one of the four known, hyper-velocity impact craters in basaltic rock anywhere on the earth. The other three basaltic impact structures are located in Brazil.
The lake formed here, is alkaline and saline at the same time – a geographical wonder – but, micro-organisms such as anaerobes, cyanobacteria and phytoplankton are found in the lake water – another geographical miracle. The lake is also surrounded by a thick jungle.
In November 2020, the lake was declared a protected ‘Ramsar site’ – a wetland site designated to be of international importance by UNESCO.
In the months of June-July 2020, the water in the lake turned pink. The National Environmental Engineering Research Institute (NEER) and Agharkar Research Institute investigated the reasons behind this change. After examination, they found that the water turned pink because of the presence of the Haloarchaea population. On further investigation, it was also discovered that the pink colour of the water was not permanent. Once the biomass of the microbes settled at the bottom, the water became transparent during one such experiment in the labs.