From the desk of Dr. Mohan Dewan | Assisted by: Adv. Arjun Pradhan Adv. Shubham Borkar
On April 27, 2022, The Office of the United States Trade representatives (USTR) released its Special 301 Report, an annual review which identifies trade barriers to American companies, with respect to the IP laws and legislations of other countries.
The Special 301 Report is an annual publication dedicated to the global state of IP protection and enforcement and identifies a wide range of concerns, including:
• Challenges with respect to border and criminal enforcement against counterfeits, including the digital environment;
• Levels of increasing online and broadcast piracy, including illicit streaming through devices;
• The inadequacies in trade secret protection and its enforcement worldwide;
• Troubles concerning "indigenous innovation"
• Other ongoing issues regarding IP protection and enforcement in many trading partners around the world.
Countries of concern are labelled as ‘Priority Watch List’ or ‘Watch List’ in the report. In this year’s report, 27 countries received a designation as a priority watch list. The designation does not impose any additional penalties or enforcement; however, the designated countries are a subject of intense bilateral engagement during the coming year.
USTR Special 301 Report of 2022
It is again a setback for the Indian pharmaceutical industry as the Special 301 report, has continued to place India on the 'Priority Watch List' quoting India as "one of the world's most challenging major economies with respect to protection and enforcement of IP". Along with India six other nations were included in the Priority Watch for lacking the requisite IPR protection and enforcement viz. Russia, China, Indonesia, Argentina, Chile and Venezuela.
Stance on India
The report highlighted the problems with regards to India's patent law, which does not allow for provision of patents for incremental innovation. The report stated that 'in the pharmaceutical sector, the United States continues to monitor the restriction on patent-eligible subject matter in Section 3(d) of the Patents Act, 1970 and its impacts’.
The report also stated that the issues with respect to the following:
• narrow patentability criteria was impacting companies of different industries, patent revocations, lack of presumption of patent validity;
• filing of a patent application was not cost effective and consumed a lot of time in terms of pre- and post-grant oppositions, long waiting periods to receive patent grants, and excessive reporting requirements;
• maintaining high custom duties directed to IP-intensive products like medical devices, pharmaceuticals etc.;
• concerns related to the unfair commercial use and unauthorized discloser of any data for which the patent has not been granted or when it is just on the filing stage were also expressed by certain stakeholders.
• The report stated that India is one of the top five source economies for Counterfeit and Pirated Goods.
• That India houses several markets which promote counterfeiting and piracy, as identified in the 2021 Notorious Markets List.
• The report states that the US brand owners have reported excessive delays and latches in trademark opposition proceedings. For example, it was unclear as to whether trademark owners could apply directly for "well-known" trademark recognition without having to rely on previous Indian court or trademark office decisions;
The report highlighted the uncertainty faced by companies in India due to insufficient legal means to protect trade secrets. It stated that despite 'India's 2016 National Intellectual Property Rights Policy, which is past-due for its 5-year review, identified trade secrets as an important area of study for future policy development, as of 2022, no civil or criminal laws in India specifically address the protection of trade secrets.
Even criminal penalties were not expressly available for trade secret misappropriation in India, and civil remedies reportedly are difficult to obtain and do not have a deterrent-level effect'.
Copyright and Piracy:
• The Report stated that copyright holders continue to report high levels of piracy;
• With respect to Section 31D, the Report stated that amending Section 31D of the Copyright Act 1957, to permit statutory licensing of interactive transmissions could have severe implications for right holders who make their content available online, and that the United States urges India to ensure consistency and compliance with the international standards;
• That pending cases and as well as the Central Govt. have raised concerns about the absence of copyright for a broad range of published works;
However, it is unfortunate that the USTR have conveniently overlooked the substantial and consistent progress made by India with regards to IP environment. In the Report, the USTR itself has admitted that India has made some remarkable progress on the IP front namely:
1. The activities of Cell for IPR Promotion and Management (CIPAM - a professional body under the aegis of Department of Industrial Policy and Promotion, Ministry of Commerce and Industry, Government of India.) for promoting IPR awareness have been applauded in the Report which stated that CIPAM maintained an active social media presence.
2. India notified Design (Amendment) Rules 2021 that reduce fees for startups seeking design protection.
3. The Report also stated that during the last year, India has taken some strict actions against websites with pirated content and has also urged the general public to not consume content from such pirated sites;
The 2022 Edition of the report should not have overlooked the substantial and consistent progress made by India with regards to IP this year. It should have considered that the Indian patent law and its application does not deny adequate and effective protection of IPR; nor does it deny fair and equitable market access to the US pharmaceutical industry which relies on IP protection. Further the establishment of a special Bench in the Delhi High Court for handling only IP cases was a commendable move and it is expected that in the coming years the IP processes and handling will change for the better. It is also noteworthy to mention here about the Report of the Parliamentary Committee on Review of IPR regime in India which has made several observations and recommendations on the IP laws and regulations in India in order to build a robust IP Policy in India.
Recently, the Hon’ble Delhi High Court directed the creation of 42 new Commercial Courts in the national capital within six months, to expedite the disposal of commercial disputes. The Court issued the direction upon hearing a Public Interest Litigation (PIL) which stated that the 42 new commercial courts which were notified and/ or sanctioned by the Delhi Government on April 13, 2021, were not setup.
According to the PIL, at present, a total of 22 commercial courts are functioning in Delhi with 26959 pending cases . It was further contended that the efficiency of the legal system and the time taken to resolve the commercial disputes was extremely important factor in deciding the growth of investment and the overall economic and social development of the nation. As per the data collected till February 2022 it takes 747 days in Delhi for the disposal of commercial disputes.
Against these claims, the administrative wing of the Court stated that a shortage of courtrooms was coming in the way of immediately starting additional commercial courts which would be established once the infrastructure was completed. It was further notified that the Chief Secretary, Government of NCT of Delhi had desired during the meeting dated June 7, 2022, that the Public Works Department ought to adhere strictly to the timelines for construction of prefabricated courtrooms and hand over the same formally within the prescribed timelines.
Taking into consideration all the submissions, the Court directed the setting up of the infrastructure for 42 commercial courts within six months. The Court also granted liberty to the petitioner to re-approach if the Order has not complied within the time frame.
The ambit of commercial courts includes adjudication of commercial disputes regarding distribution and licensing agreements, trademarks, copyrights, geographical indication, semiconductor integrated circuits, patents, domain names, etc. Thus, the overall creation of new courts will prove to be a boon for all IP litigants as it will lead to speedy disposal of cases.
Meta was aggrieved of the adoption of the mark “Facebake/Facecake‟ by Noufel Malol (Malol’s). Resultantly Meta approached the Delhi High Court seeking a decree of permanent injunction restraining Malol from using the mark “Facebake” and/or the domain name www.facebake.in. Meta claimed that it gained knowledge of Malol’s activities when it came across an advertisement of the application in the Trade Marks Journal seeking registration of the mark “Facebake”. Meta opposed the said application. It asserted that the use of the similar mark by Malol was an infringement of its statutory as well as common law rights as also results in passing off, dilution and unfair competition by the defendants. The Delhi High Court had restrained Malol through an ad-interim injunction in January, 2021.
However, it came to Meta’s knowledge that that despite the above Order, Malol had incorporated a company named “Ehrlich Foods and Beverages Pvt. Ltd’ in January, 2021. The company filed an application for registration of the mark “Facecake” and had also changed its mark to,in March, 2021.
Meta thereafter sought to implead the said company as Defendant No.2 in August, 2021. However, no one appeared on behalf of Defendant No. 2 despite service of summons, and hence the matter proceeded ex-parte.
Meta claimed that the Defendants were mimicking the visual presentation by copying the colour scheme, font, commercial impression, and the overall trade dress, thus intentionally trading off the significant goodwill that Meta had established through its “Facebook” marks. Meta contended that its social networking service Facebook had a distinct colour scheme of blue and white, which was also reflected in the stylistic representation of the device mark along with a distinctive layout, font, and the overall visual impression was completely imitated by Malol for his pastry shop.
*We do not claim any copyright in the above image. The same has been reproduced for academic and representational purposes only.
Meta stated that it had around 17,000 registrations and/or pending applications for the “Facebook” marks in approximately 130 countries, covering 45 international classes. It was further asserted that the “Facebook” marks as also other marks containing the formative word “Facebook” have been recognised as “well-known” as defined under Section 2(1)(zg) of the Trade Marks Act, 1999 as well as several international jurisdictions such as the European Union, Brazil, Sudan, Portugal, France, the United States of America, Spain, Germany, South Korea, and Turkey and were therefore entitled for protection, despite use of the impugned marks by the Defendants for different goods.
The Court, after considering the relevant provisions and precedents pertaining to “well-known” trademarks, held that the Meta’s marks were well-known in India. The Court added that in the present case, though there was some distinction between the marks Meta and Malol, the overall visual representation adopted clearly depicts the mala fide intent of Defendants in obtaining unfair advantage by the use of the mark similar to that of Meta and also lead to the dilution of the Meta marks.
The act could lead to an unwary consumer being at least interested in taking note of Malol as having some kind of connection with Meta. The Court further held that Malol’s mala fide intent was also evident from the fact that upon the knowledge of the ad-interim injunction passed by the Court, he changed the mark from “Facebake” to “Facecake”, however, chose not to appear before this Court to defend the suit in spite of service.
Accordingly, The Court decreed the suit on the above terms and permanently restrained Malol from using the Facebake marks; infringing domain name; the mark Facecake; the Facebook marks, the Facebook Visual Presentation, and any other “Facebook” formative trademarks of Meta in any manner whatsoever. The Court also directed Malol to pay damages of Rs.50,000/- and the cost of the suit to Meta.
Apples, not caffeine, are more efficient at waking you up in the morning.
Earlier we had written an article wherein the English songwriter-singer, Ed Sheeran had won a copyright infringement case in the United Kingdom's High Court on April 6, 2022, over his 2017 song “Shape of You”. Sami Chokri, a.k.a. Sami Switch (Chokri), and his co-writer Ross O’Donoghue, had sued the 31-year-old singer and his co-writers and accused them of plagiarising a phrase from the British grime track "Oh Why" when writing the worldwide smash.
To summarise the dispute, in brief, Chokri and O'Donoghue addressed the Performing Rights Society (PRS) in May 2018, a British music copyright collective that pays song royalties, that be credited as songwriters on “Shape of You.” As a result, PRS suspended payments to Sheeran for performances and broadcasts of the song.
Sheeran and the co-writers of the song 'Shape of You' (John McDaid of the band Snow Patrol, and Steven McCutcheon) subsequently sought a declaration from a High Court in London to declare that they had not violated Chokri's copyright. Chokri and O'Donoghue responded with a counterclaim of copyright infringement.
Both parties submitted forensic musicologists' evidence to demonstrate the song's similarities and distinctions. Chokri alleged that Sheeran was a habitual plagiarist.
Against that, Sheeran denied having met Chokri or copying the song. He even sang parts of Nina Simone’s “Feeling Good” and Blackstreet’s “No Diggity” to demonstrate that the disputed melody in “Shape of You” was common in pop music.
After considering all the submissions and contentions of all the parties during the 11-day trial in London, the Court held that Sheeran was not guilty of plagiarism "neither deliberately nor subconsciously". The Court further held that while Chokri’s shock after hearing “Shape of You” was understandable, given the similarities between the two songs, such coincidences were not uncommon and that even if Sheeran was looking for any inspiration for the track, Chokri’s track was “far from the obvious source”.
A recent update on the matter was on June 21st, 2022, wherein the Court awarded Sheeran and his co-songwriters his co-songwriters an interim payment of £916,200 ($1.1 million) in legal costs. Furthermore, on June 22nd, 2022, the Court directed that Chokri and O’Donoghue shall make the payment.
Welcoming the ruling, Sheeran said that baseless copyright claims were damaging the music industry.
Sign over a Gynecologist's Office:
"Dr. Jones, at your cervix.”
In a Podiatrist's office:
"Time wounds all heels.”
On a Septic Tank Truck:
Yesterday's Meals on Wheels
At an Optometrist's Office:
"If you don't see what you're looking for, you've come to the right place.”
On a Plumber's truck:
"We repair what your husband fixed.”
On another Plumber's truck:
"Don't sleep with a drip. Call your plumber.”
SM MOTORENTEILE GMBH (hereinafter SMM) is engaged in the business of manufacturing and selling metal equipments for automobiles. SMM is the registered proprietor of the marks “SM” & ""(SM Logo). SMM approached the Delhi High Court and filed a suit for trademark infringement, passing off as well as unfair trade competition against MAHARASHTRA MOTORS (MM) and certain retail shop owners for were selling cheap imitations of the SMM’s products under SMM’s registered marks.
SMM claimed that it gained knowledge about the infringing activities of MM and the shop owners in May, 2022. SMM thereafter conducted an investigation and discovered that the infringers not only sold cheap imitations of SMM’s products using their registered logo but also, did not provide any proper invoice to the customers. SMM placed filed several documents consisting of the invoices, photographs of the infringing product etc. on record in its support.
SMM claimed that it was the registered proprietor of the SM Logos in classes 7 and 12 and presented domestic and well as global sales figures in support of its claim. SMM further stated that the said marks were first used in 1973 for the products of a joint venture company named ‘Schoettle Motorenteile GMBH’ and thereafter SMM succeeded to the rights in the said marks which was used extensively and continuously in over 100 countries.
Photographs of the infringing product sold by the MM and others
*We do not claim any rights in the above pictures. The same have been used for educational purposes only.
After considering all the submissions made by SMM, the Court was satisfied that SMM had made out a prima facie case, balance of convenience for the grant of an injunction in its favour. Taking the consumer interest in consideration as well, the Court observed that the impugned goods were likely to deceive the general public and SMM would suffer grave irreparable harm in case an injunction was not granted.
Hence, the Court restrained the infringers and granted an ex-party ad-interim injunction in favour of SMM. The Court also appointed a Local Commissioner to seize and sealing all the infringing goods bearing the SM mark and logo.
Venus is the only planet that rotates clockwise.
(Since Venus is normally associated with women, what does this tell you?)
Culver Max Entertainment Private Limited (‘Culver Max’) doing business as Sony Pictures Networks India Pvt. Ltd., is an Indian media conglomerate owned by Sony Pictures Entertainment. Culver Max manages and operates 26 television channels, the streaming media platform SonyLIV, as well as the television studio “Studio NEXT” and film studio Sony Pictures International Productions. The network forayed into the Indian sports TV market in 2002 after acquiring the license rights for International Cricket Council (ICC) matches from 2003 to 2007, which were broadcast on SET and Sony MAX.
Culver Max acquired an exclusive copyright license from England and Wales Cricket Board Limited (‘ECB’) to broadcast/communicate the India-England International Cricket Series 2022 which is scheduled from 1st July, 2022 to 17th July, 2022 (‘Sporting Event’). Therefore, in order to telecast these matches to the public at large, the ECB has licensed the following rights to Culver Max:
1. Exclusive television rights which are extended to live, delayed and repeat basis, digital rights with respect to mobile rights and internet rights as well as exclusive radio rights within the Licensed Territory;
2. Exclusive Clip Rights, Audio Rights, Public Screening Rights as well as the right to make programmes relating to the matches and match Highlights which are usually telecasted after the match ends;
3. Exclusive right to create contemporaneous textual commentary of the matches on its mobile platform and website;
4. Right to sub-license the Media Rights to any third party.
Culver Max discovered that certain rogue websites, Uniform Resource Locators (URL) and Local Cable Operators (LCO) were habitually defaulting and infringing Culver Max’s exclusive broadcasting rights of such matches in the past. The unauthorized use of the pirated copies and the unlicensed broadcasting rights resulted in losses caused to Culver Max and also the Government as the revenue that was collected through taxes could not be collected from these websites that broadcast pirated contents .
Resultantly, Culver Max filed a suit in the Delhi High Court seeking a permanent injunction in order to restrain the rogue websites, URLs and LCOs from infringing the rights in the India-England Cricket Series 2022 which are recently being held.
After taking into consideration all the aspects and the weighing all the losses bore by Culver Max and the Government in the past, the Court granted an injunction in favor of Culver Max restraining all rogue websites from hosting, streamlining, reproducing and distributing any pirated and unlicensed version of the matches telecasted. Certain rogue websites were directed to block access to their respective websites. The injunction also covered all the mirror/redirect or any other equivalent websites.
The Court additionally gave Culver Max, the liberty and permission to file an application against any other rogue website which they may discover at a latter point in time.
CURFEW - The word "curfew" comes from the French phrase "couvre-feu", which means "cover the fire". It was used to describe the time of blowing out all lamps and candles. It was later adopted into Middle English as "curfeu" which later became the modern "curfew". In the early American colonies homes had no real fireplaces so a fire was built in the centre of the room. In order to make sure a fire did not get out of control during the night it was required that, by an agreed upon time, all fires would be covered with a clay pot called-a "curfew."
R K Dewan & Co. urges Indian enterprises to actively participate in the the 9th edition of CII Industrial Innovation Awards - 2022 which aims to recognize the Champions of Indian Industrial Innovation and harness the opportunity to introspect on your business innovations.
Since 2014, The Confederation of Indian Industry (CII) had instituted its Industrial Innovation Awards to identify and celebrate innovative Indian enterprises across various industry segments and sectors. Over the years, these awards have established themselves as one of the most coveted innovation awards in the country.
Competing for CII Industrial Innovation Awards 2022 offers the following benefits:
• Opportunity of getting assessed for your company's innovation quotient- Feedback report from a renowned jury and recognition as an innovation driven organization among business circles.
• Publication of Innovation stories in CII Innovation Book 2022 - to be disseminated widely to Government, Media, Foreign embassies, and Indian embassies in foreign counties, Industry and other relevant stakeholders.
• Opportunity for taking leadership role in CII’s National committee related to Technology and Innovation
The call for Applications for the 2022 awards is open till the August 31, 2022 and the awards shall be announced in November 2022.
Visit: www.innovationawards.ciiinnovation.in to apply for the award.
Recently, the Government of India issued new guidelines for hotels and restaurants with regards to levying of service charge.
What is a service charge?
A service charge is a fee charged by the hospitality sector from their customers for serving them. Payment of the service charge was voluntary at the discretion of the customers was not mandatory at all as per the earlier guidelines issued by the Department of Consumer Affairs under the Ministry of Consumer Affairs, Food & Public Distribution in 2017.
What was the issue?
Customers frequently complained about some restaurants imposing service charges without their consent, while a few restaurants added them by default. People also complained about how the restaurant would embarrass them if they refused to pay the charge.
How would the Consumer Interest be protected?
The Central Consumer Protection Authority (CCPA) now forbids hotels and restaurants from including a “service charge” in their invoice by default citing their practice as “unfair trade”.
The CCPA has issued five major guidelines which stipulate:
i. No hotels or restaurants shall add service charge automatically or by default options in the billing;
ii. The service charge shall not be collected from consumers by any other manner;
iii. Consumers shall not be forced to pay service charge and to be clearly informed hotels and restaurants that the charge is voluntary, optional, and at the consumer’s discretion;
iv. There shall be no restriction upon the provision of services based on collection and/or payment of service charge imposed on consumers; and
v. Service charge shall not be collected by incorporating and/or adding the same along with the food bill and levying the GST on the total amount.
What can a customer do in case of violation of these guidelines?
The customer has four options at escalating levels as per the following:
Firstly, a customer can make a request to the hotel or restaurant to remove the service charge from her bill;
Secondly, a customer can lodge a complaint on the National Consumer Helpline (NCH) by calling on the number 1915 or on the NCH mobile app as an alternative dispute redressal mechanism at the pre-litigation level;
Thirdly, a customer can lodge a complaint to the Consumer Commission or via e-daakhil portal; and
Finally, a customer can submit a complaint to the District Collector of the concerned district for an investigation and subsequent proceedings to the CCPA by mailing at firstname.lastname@example.org.
Service charge was considered a ‘beneficial’ payment since it was meant for the benefit of the staff of the establishment. However, eventually the guidelines issued shall now put a load on the products and services of the hotels and restaurants.
BARRELS OF OIL - When the first oil wells were drilled, there was no provision for storing the liquid so they used water barrels. That is why, to this day, we speak of barrels of oil rather than gallons.
On July 9, 2022, The Government of India launched a “Jute Mark India logo”, which will act as the certification of authenticity for jute products manufactured in India and an assurance regarding origin and quality for jute and jute products. It is an initiative to protect and promote Indian jute products. This is aimed to strengthen the domestic market as well as Export of Jute products and revamping the Indian Jute Industry. It was implemented during the on-going Jute promotion and development scheme 2022- 2026. The Union government has allocated INR 485.58 for the scheme.
This Jute Mark label will feature as a hall mark on all jute products manufactured in India, it will contain a unique QR code which would enable the consumers to know about the producers and validate its authenticity. The unique QR code on the Jute Mark bearing a unique will also serve as anti-counterfeiting measure is expected to increase the domestic market and export of Jute products made in India to other countries.
The National Jute Board, (Union Textile Ministry) is the nodal agency manages the promotion of jute and Jute products in India. India’s export of Jute in the fiscal year 2020-21 stood at INR 2740 crores and that of diversified products of Jute was at INR 1261 crores, in the fiscal year 2021-22 the provisional export of Jute Goods increased significantly to INR 3785.68 crores.
HOT OFF THE PRESS - As the paper goes through the rotary printing press friction causes it to heat up. Therefore, if you grab the paper right off the press, it's hot. The expression means to get immediate information.
- Provided by my good friend, Phil Furgang.
A cook that leaves Arby's to work at McDonald's.
The act of torching a mortgage.
What a crook sees through.
What a bullfighter tries to do.
Workers who put together kitchen cabinets.
6. LEFT BANK
What the bank robbers did when their bag was full of money.
What a man in a boat does.
*We do not claim any copyright in the above image. The same has been reproduced for academic and representational purposes only.
Code Fish is a Lebanon based company involved in providing services like outsourcing IT, in-house staff augmentation, consulting services to business process automation, customized Business Applications, mobile to Smart TV apps consulting services and more.
Their trademark is also a CODE FISH! A fish designed with the help of codes/symbols used in coding.
Their slogan is also very apt “if you are fishing for codes, get hooked”
-Adv. Chinmay Pawar
Chandratal Lake – A serene lake at 4200 meters above sea level
Source - www.moxtain.com & www.tripadvisor.in
(We do not claim any copyright in the photographs. They have been used for academic and representational purposes only.)
The stunning lake is situated on the Samudra Tapu plateau in the Himalayan state of Himachal Pradesh and is the source of the Chandra River. It is situated at a height of 4270 meters above sea level.
The name ‘Chandra Taal’ literally means a ‘Lake of the Moon’ which is attributed to its crescent shape. This lake is also one of two high-altitude wetlands of India that have been designated as ‘Ramsar sites’.
According to Hindu mythology, Chandratal Lake lies in the vicinity of a place from where God Indra's (King of Gods) chariot picked up King Yudhishthira, the eldest of Pandava brothers in Mahabharata. The colour of the water of this lake keeps changing from reddish to orange to blue to emerald green as the day ends.