Monday, 15 May 2017

DU Photo Copy Case: IRRO challenges Delhi High Court judgment before the Supreme Court


We had earlier published what was expected to be the final note on the DU Photocopy case, when the Oxford University Press, Cambridge University Press, and Taylor and Francis (hereinafter referred to as "Publishers") withdrew their copyright suit against Delhi University and Rameshwari Photocopier. One of the many reasons of withdrawal was that a group of Oxford University Students, Alumni and Academicians urged the Publishers to refrain from appealing the progressive decision of the Division Bench so as to make knowledge accessible and affordable for all students.

However, last month, the Indian Reprographic Rights Organization (hereinafter referred to as the ‘IRRO’) filed a Special Leave Petition before the Supreme Court challenging the judgment passed by the Division Bench of the Delhi High Court on December 9, 2016.

For the ease of convenience of our readers we have summarized the events of the case till date below -
  1. In the year 2012, the Publishers filed a suit for infringement of Copyright against Rameshwari Photocopy Services and the University of Delhi for making photostatted course packs or study material available to the students, without taking any permission from the publishers.
  2. The High Court of Delhi granted ad interim injunction whereby the Defendant was restrained from making and selling course packs and also reproducing the Plaintiff’s publication by compiling the same either in the book form or course packs.
  3. During the trial, Society for the Promotion of Educational Access and Knowledge (hereinafter referred to as ‘SPEAK’) and Association of Students for Equitable Access to Knowledge (hereinafter referred to as ‘ASEAK’) were impleaded as Defendants.
  4. In September 2016, the Delhi High Court decided the case in favor of the Defendants and held that "Copyright, especially in literary works, is thus not inevitable, divine, or natural right that confers on the authors the absolute ownership of their creators. It is designed rather to stimulate activities and progress in the arts for the intellectual enrichment of the public."
  5. Aggrieved by the order of Single Judge the Publishers filed an appeal to the Division Bench. In addition to withdrawing the case from the Delhi High Court, the Publishers assured that it was not going to take up the issue before any other higher court, such as the Supreme Court of India.
  6. On December 9, 2016 the Division Bench of the Delhi High Court decided the appeal interpreting Section 52(1)(i) of the Copyright Act as permitting photocopying of copyrighted works for preparation of course packs and remanded the suit to the single bench for a fact specific determination on whether the copyrighted materials included in the course packs in this case were necessary for the purpose of instructional use by the teacher to the class.
  7. On March 9, 2017 the Publishers withdrew the suit from the Delhi High Court.

On January 30, 2017, the single judge had refused to allow IRRO and the publishers’ associations, FIP and API (who had intervened in the appeal before the Division Bench) to intervene or be impleaded in the remanded proceedings before it, holding that the Division Bench had remanded the suit only for a factual determination as to the purpose of inclusion of the copyrighted works in the course packs and no party except the Plaintiff-Publishers had a say in it. IRRO, FIP and API had, thus, applied to the Division Bench for clarification on the remanded issues. While the matter was pending, in a surprising move, the publishers had withdrawn the suit on March 9, 2017.


The copies of the special leave petition have been served on the Defendants and the matter is expected to come up before the Supreme Court.

In an effort to simplify patent screening Japan to use AI


The Japan Patent Office is planning on using artificial intelligence (hereinafter referred to as ‘AI’) in the processing of patents. AI will help to automate ‘cumbersome’ tasks in patent, trademark and design applications, such as literature reviews. The office hopes to begin using this technology to automate 20 tasks by 2018, according to Nikkei Asian Review Report.

In this context, AI will be able to search through lots of files and documents to check if a piece of technology or intellectual property has already been patented. It will also be able to classify patents by field, according to the report.

Furthermore, image recognition technology will be able to verify trade mark applications against previously registered images and logos.

This is not the office’s first foray into AI. Since December last year, it has been using an AI system to answer queries about patents, the report said. The performance of this technology proved that it increased operational efficiency and helped to “curb long working hours”.

Testing of this new AI system will begin this summer, starting with 6 of the 20 tasks, and will continue in stages for the remaining 14 in the next fiscal year.

Artificial Intelligence is the next big thing in the legal profession, especially in an age when corporate clients have become increasingly cost-conscious about their legal bills, refusing to pay for the hours spent on research, even as those hours soar. The bottom-line is, for the legal profession to stay competitive, they must start cutting costs. That means finding ways to make processes like research more efficient. That’s where ROSS Intelligence comes in. Built on the Watson cognitive computing platform, ROSS has developed a legal research tool that will enable law firms to slash the time spent on research, while improving results.

Current legal research offerings like Bloomberg BNA, LexisNexis and Thomson Reuters come with a steep learning curve, requiring training that’s not built in to the billable hour model. In other words, it doesn’t pay to learn how to use these specialized platforms. Internet search is more user friendly, but returns poorer quality results that still need to be sifted through manually.

Not only can ROSS sort through more than a billion text documents each second, it also learns from feedback and gets smarter over time. To put it another way, ROSS and Watson are learning to understand the law, not just translate words and syntax into search results. That means ROSS will only become more valuable to its users over time. Which is not to say that ROSS will be replacing lawyers. Weighing data, drafting documents and making arguments—those will still be left to the humans. But by tackling the burdensome task of research, ROSS frees up lawyers to do what they do best, and helps keep costs down, which brings down the point of entry for clients.

Court stalls the sale of Bhagat’s new novel amid plagiarism charges


A Bengaluru Civil Court on April 19 granted a temporary injunction holding back author Chetan Bhagat from selling his book, ‘One Indian Girl’ following a city-based writer’s suit claiming that the work was a copy of one of her short stories, ‘Drawing Parallels’ from her book, ‘Life, Odds & Ends’.

Anvita Bajpai, a fellow IIM graduate and a writer as Bhagat, had filed an original suit seeking a permanent injunction restraining Bhagat and his publisher from selling his recent book and also claimed damages of INR 1 lakh (USD 1550 approx.). After hearing the advocate for Bajpai, the court passed a temporary injunction order on April 19 until the next hearing.

Anvita had earlier sent a legal notice to Chetan Bhagat on February 22, asking him to withdraw the book and pay a sum of INR 5 lakh (USD 7750 approx.) towards damages. The following day, Bhagat replied to her denying all allegations and stating that ‘One Indian Girl’ was a totally different story and not based on Anvita’s short story.

Bhagat denied all the allegations levelled by Anvita Bajpai and stated that he has never met her or read any of her work. The writer added on his official twitter page, “I write universal stories about everyday issues. This could be a misunderstanding and am sure will be clarified as what is being suggested is baseless. My publisher’s legal team will be taking appropriate steps.”

Invention titled ‘Futuristic Safe Injection System-2020’ selected for the BIRAC-SRISTI Application Award – 2017


Prathiba Rathore, daughter of Dr. Bhuvan Chandra Rathore, currently serving as the Deputy Registrar, Trademarks & Geographical Indications has recently been selected for the BIRAC SRISTI Appreciation Award for her invention titled, ‘Futuristic Safe Injection System-2020’.

SRISTI has signed an agreement with BIRAC-DBT to facilitate the Innovations by students and grassroots people. The salient features of this agreement are to expand the funnel for early stage student led ideas and innovations,  sometimes only at proof of concept level, for recognition and further development in the field of medical devices, diagnostics and biotech applications for meeting unmet social needs in extremely frugal and potentially sustainable manner. BIRAC-SRISTI GYTI Awards and BIRAC-SRISTI Appreciation Awards were instituted under this Agreement. BIRAC will support 100 grassroots and students (children’s) innovations. A grant of INR 1 lakhs (USD 1550 approx.) each will be given to reveal the science and develop product/prototype.

About the Invention:

Keeping in mind that safety in relation to injections and the hazardous bio-medical waste is a major global healthcare concern being directly responsible for spreading various dreadful diseases i.e. Hepatitis B/C, HIV/AIDS as well as other serious communicable diseases leading to pre-mature deaths of 1.3 million people every year. The invention titled, ‘Futuristic Safe Injection System-2020’ provides a cheapest, greener, sustainable, ergonomic disruptive technology compatible with WHO’s guidelines, which will completely eliminate the need of syringe ensuring ‘single dose-single needle’; preventing Needle Stick Injury, needle-reuse, counterfeit drugs; reducing hazardous medical waste by 70-75%  and ultimately saving millions of lives & billions of dollars without creating any technological divide. It consists of two variants of reusable injector and 18 variants of safely disposable drug-cartridge containing inbuilt piston and retractable needle along with a fixed dose of medicament, wherein needle retracts automatically within the empty cartridge after the injection process.

The European Patent Office, while examining its International Patent Application WO2016142799 has opined in the following terms –

The technical effect of these features is that the injector is reusable while the only parts to be discarded are the needle hub and the medicament cartridge. As a result a cheaper and friendlier to the environment system is achieved without an increased risk of needle injuries.”

This technology will help in democratizing healthcare system by making it equally affordable and accessible to all. It will ensure fullest achievement of WHO’s initiatives to completely replace conventional syringes with safety syringes by 2020 (to which WHO has already imparted global leadership to India), meeting Sustainable Development Goals (SDGs) by multi-fold benefits to healthcare system, reducing healthcare concerns originating from Climate-Change and most importantly, in achieving the highest goal of securing a safe, healthy and dignified ‘Right to Life’ for all.

The inventors, a family of five members, consisting of Jai Hind Rathore (son), Bharati Rathore & Pratibha Rathore (daughters), Dr. Neelam Rathore (mother) and Dr. B. C. Rathore (father), have earnestly dedicated more than a decade putting their entire efforts, labor, skill, energy, money and all resources without seeking any kind of support from anyone in developing this invention. Inventors have voluntarily and delightfully offered a free of cost license to WHO, UNICEF and RED-CROSS, so that the ultimate benefits of invention may directly reach to the end-users in urgent need.

Tuesday, 2 May 2017

The Office of the Controller General of Patents, Designs & Trademarks releases its Annual Report for the year 2015-16

The Office of the Controller General of Patents, Designs and Trade Marks (hereinafter referred to as the ‘Office’), aims to meet requirements of constantly changing IP landscape and aspires to strengthen the culture of transparency, accountability and efficiency in its management. It endeavors to establish a vibrant and balanced IP regime in the country to support the country’s innovation and developmental objectives. The Office has undergone sweeping transformations due to various initiatives for easing of access to all stakeholders, augmenting efficiency in processing of IP applications, accomplishing uniformity and consistency in the examination of application, strengthening transparency and dissemination of IP related information, nurturing bilateral co-operation at the international level and leveraging the level of IP awareness amongst the public.

With its responsibilities in mind, the Office on April 03, 2017, released its Annual Report for the year 2015-16. The details of the activities performed by various offices under the Office during the year 2015-16 as well as the revenue and expenditure details of all offices under the Office and other relevant statistics are also included in it. Some of the highlights are mentioned in detail below–

The Office has shown consistent growth over the years. This year, being no exception, witnessed an enormous surge of about 30 % in filing of intellectual property applications, (341,086) compared to the previous year (262,638). The trends of the last five years with respect of filing of intellectual property applications are shown below –

Patents:

·       During the last financial year, 46,904 patent applications were filed exhibiting about 10 % growth in filing as compared to previous years. The trends of the last five years with respect to patent applications filed, examined, granted and disposed are given below. Disposal of application includes patent granted, refused, withdrawn and abandoned applications during the year. The trends for the last five years are given below –

Designs:

During the year, 11,108 design applications were filed, which showed an increase of 19 % as compared to the last year. The number of design applications examined also increased to 9,426 in 2015-16 as compared to 7,459 during 2015-15. 7,904 designs were registered during the year as compared to 7,147 during 2014-15. The trends for last five years are given below –


Trademarks:

In this year, 283,060 trademark applications were filed. As compared to the previous year there is an increase of almost 35 % in the filing. 267,861 applications were examined recording a staggering 60 % increase in examination and 65,045 trademarks were registered recording 55 % increase in registration as compared to the last year. The trends for the last five years are as follows –


Geographical Indications:

Since September 15, 2003, a total number of 543 applications have been received till March 31, March, 2016. During the reporting year, 17 applications were filed and 200 applications were examined. A total number of 26 Geographical Indications were registered. The trends in GI applications filed, examined and registered during the last five years are given below–


The ‘Nation wants to know’ if Arnab can use the phrase!!

Fresh after putting to bed the wrangle surrounding the name of his new venture, Arnab Goswami has somehow landed up in a brand-new controversy, when in the early hours of April 18, 2017, it was reported in most media outlets that a ‘top media house’ has sent Arnab a legal notice related to the use of the phrase, ‘Nation Wants to Know’. When Mr. Goswami was with Times Now, in the primetime segment ‘The Newshour’, he made the phrase extremely popular, repeatedly juxtaposing the use of it between heated discussions among his various panelists, so much so that he became synonymous with the use of this phrase.

However, Mr. Goswami remains undeterred from the legal threat claiming he is ready for the challenge, as can be understood from an audio message that he uploaded on YouTube. In it, he states
,
“The threat of imprisonment will not deter me. Bring your moneybags and your lawyers, file the criminal case against me for using the phrase ‘Nation wants to Know’. Do everything you can, spend all the money you have and arrest me. I am waiting right now in my studio. Come, enforce your threat.”

He further went on to say that the phrase belongs to every citizen in the country. While it might sound a little hyperbolic, he stated, ‘Every Indian has a right to use the phrase. And this phrase come from the heart. Every Indian, through his or her questioning spirit, can use the phrase.

Nonetheless, Mr. Goswami has found some much needed support from the journalistic fraternity, as Barkha Dutt, known mostly for being at loggerheads with Arnab, tweeted from her official twitter handle, “Don’t often agree with Arnab, but this is insane. So unfair how all media owners’ force-own copyright of shows created & nurtured by individuals.

Even though the media house in question is not named by Mr. Goswami in the video, a simple Trademark Search on the IPIndia Website indicates that Bennet Coleman and Company, the media conglomerate that owns the channel, Times Now had already filed application for the trademark over the phrase, back in December 2016, probably in anticipation of Mr. Goswami starting his own venture. Mr. Goswami and his company, ARG Outliers Private Limited also filed for an application in January 2017, even though it is curious as to why he has filed a trademark application for the phrase at all, especially in light of the fact that in the above referred public video, he said that the phrase belongs to each and every Indian citizen and no one can own it!!

Even though Times Now filed for a trademark application in December 17, 2017, almost a month before Arnab did, they did so on a proposed to use basis, whereas Arnab has claimed use in his application since November 20, 2016. Another point to be noted from this controversy is the astonishingly high number of Trademark applications filed by ARG Outliers, even though it is yet to officially launch the channel. Such a move by the company is a smart one as it will help in avoiding such controversies in the future (or perhaps help in creating more!). A list of marks filed for by the company are listed below –
This new controversy surrounding Arnab’s use of the phrase is not a new one in the Indian media and entertainment industry. A controversy of a similar nature with even more publicity was also witnessed by the Indian audience, when Sunil Grover, the ace comedian who won millions of hearts with his stint on Comedy Nights With Kapil and The Kapil Sharma Show, suddenly left comedy nights and revamped his much-loved character of Gutthi as Chutki for a new comedy show, in a different channel, Mad in India.

Sunil’s Chutki act landed him in deep trouble as Viacom 18 (co-producers of ‘Comedy Nights With Kapil’) soon slapped a legal notice on him. However, the controversy was put to bed when Kapil’s show started witnessing a dip in TRP’s, which critics said was because of the outcome of Sunil’s exit, and after discussions, Sunil returned to Kapil’s show, this time in a new character, playing Kapil’s father-in-law.

While everything seems hunky dory between the two now, these instances are a microcosm of contemporary employer-employee relationship. With reference to the recent Arnab Goswami incident, Times Now, can easily claim that its contracts with its employees contains a clause that all intellectual property created during the course of employment would vest with the company itself. In fact, such terms in employment contracts are not very uncommon, and it is natural for the employers to include such clauses into contracts to protect their interests. In such a scenario, even though the phrase was given a soul by Arnab Goswami, it is Times Now who owns it.

However, it is not entirely a dark tunnel for Arnab. As correctly pointed out by FirstPost in their article, ‘Arnab Goswami vs Times Now: Nation wants to know whether you can own catchphrases? You can't.’ published on April 21, 2017, a copy of which can be found over here, a possible line of argument which Goswami could take is that the phrase is a part of Goswami’s Image/Publicity rights. For instance, Goswami could argue that the public associates ‘Nation Wants to Know’ not with brand Times Now but with brand Arnab Goswami, and that use of the phrase by anyone other than Arnab Goswami violates Goswami's image rights. In order to successfully claim image rights over the phrase, Goswami would have to prove that the phrase, ‘Nation Wants to Know’, is an aspect of his personality

Generally publicity and celebrity rights are analogous to a celebrity. They generate economic value – be it news stories and gossip items about celebrities’ personal and professional lives, or the lucrative market for celebrity merchandise and endorsements. But, the only problem with this line of argument is that the Indian legal system is not yet well developed to deal with the modern phenomenon of publicity and image rights, especially in light of the fact that there is no codified law to that end, and the increasing use of the internet for communication and advertising means that any misuse can proliferate quickly. No specific provision in the Indian Trademarks Act, 1999, or the Copyright Act, 1956, expressly addresses publicity and image rights. Nonetheless, the Copyright Act, 1957, defines ‘performer’ in Section 2 (qq), which includes an actor, singer, musician, dancer, acrobat, juggler, snake charmer, lecturer or any person who gives a performance. There is little clarity as to what aspects of an individual’s publicity and image rights may be protected under copyright law. Thus, protection is provided for specific works only, and a celebrity might not be able to exercise a general right to his image.

It will be interesting to note further developments in this controversy, and if Mr. Goswami and Times Now is not able to settle it amicably like Kapil Sharma and Sunil Grover did in their initial dispute, then it will truly be a landmark legal battle which might conclude with the judiciary stressing the need for a separate law addressing the issue of Image Rights.

Cipla Limited vs. Cipla Industries Private. Limited: Was the Court’s interpretation too Literal?


On March 01, 2017, the Full Bench of the Honorable Bombay High Court in the case of Cipla Limited vs. M/s Cipla Industries Pvt. Ltd., passed a dictum on the inter play between Sections 29 (4) and (5) of the Trade Marks Act, 1999, and discussed at length the nexus between the two.  

Background of the Case.

Cipla Limited (hereinafter referred to as ‘the Plaintiff’) is the registered trade mark holder of the mark CIPLA in Class 5, whereas M/s Cipla Industries Pvt. Ltd. (hereinafter referred to as ‘the Defendants’) have registration for the mark CIPLA PLAST in Class 21. 

In 2012, the Plaintiff filed a suit for infringement and passing-off against the Defendants. The Plaintiff claimed that the Defendants have infringed upon their marks by incorporating the Plaintiffs’ registered trade mark into their trade name/corporate name. Justice Gautam Patel vide his order dated April 26, 2016, expressed that he is not in consonance with the findings of the Division Bench in Raymond vs. Raymond Pharmaceuticals Pvt. Ltd.[1] and that Division Bench’s view required reconsideration.

The Plaintiff submitted that Sections 29(4) and (5) are inclusive and that the statute must be read as a whole to give a consistent and harmonious interpretation. Additionally, the Plaintiff submitted that the Division Bench overlooked Section 29 (8), and that sub-section (8) will apply irrespective of the goods or the nature of business of the Defendants.

The Defendant submitted that sub-section (4) can only be invoked when it is a “Trade Mark versus Mark” situation and NOT in the case of a “Trade Name versus Name” situation and asserted that a literal interpretation of the subsections (4) and (5) will have to be made.

The Plaintiff, in its rejoinder, further submitted that it has the right to a remedy under Section 29 (4) of the Act as the Defendants were using the registered trade mark ‘Cipla’ only as a trade name in respect of dissimilar goods.

Relevant Sections of the Act

Section 29(4) - A registered trade mark is infringed by a person who, not being a registered proprietor or a person using by way of permitted use, uses in the course of trade, a mark which-
  1.   is identical with or similar to the registered trade mark;
  2. used in relation to goods or services which are not similar to those for which the trade mark is registered;
  3. the registered trade mark has a reputation in India and the use of the mark without due cause takes unfair advantage of or is detrimental to, the distinctive character or repute of the registered trade mark. 

Section 29(5) - A registered trade mark is infringed by a person if he uses such registered trade mark, as his trade name or part of his trade name, or name of his business concern or part of the name, of his business concern dealing in goods or services in respect of which the trade mark is registered.

Held  

The Full Bench while interpreting Section 29 (5) of the Act laid down the following requirements for invoking Sub-Section (5). Firstly, the infringer should use a registered trade mark as his trade name or as part of his trade name. Secondly, the infringer should be using the trade mark in respect of similar goods and services. The question before the Court was, whether Section 29 (4) of the Act can be invoked in a case where the second requirement of Sub-Section (5) is not met. The Honorable Court was of the view that the phraseology makes it clear that Sub-Section (4) applies in a ‘trade mark versus mark’ situation and hence cannot be applied as both the Sub-Sections are mutually exclusive.

As the language of both the Sub-Sections are plain and clear, a literal rule of interpretation has to be applied. The words "in the course of trade" and "in relation to goods or services" used in Sections 29 (4) of the Act are not used in Section 29 (5) of the Act and the words "if he uses such registered trademark, as his trade name, or the name of his business concern or part of the name, of name of his business concern" used in Section 29 (5) are absent in Sections 29 (4) of the Act. This difference in evident of the legislative intent to avoid over lapping of the two subsections.

Thus, the questions referred put forth by the Learned Single Judge were answered as follows: 

1.     Where a party is found to be using a registered trade mark as a 'name', viz., as a corporate or trading name or style, though in respect of goods dissimilar to the ones for which the trade mark is registered, is the proprietor of the registered trade mark entitled to an injunction on a cause of action in infringement under Section 29 (5) of the Trade Marks Act, 1999?

The Bench answered this in the negative.

2.     Whether the use of a registered trade mark as corporate name or trading name or style is excluded from the purview of Sections 29 (1), 29 (2) and 29 (4) of the Trade Marks Act, 1999 and whether these sections are restricted to the use of a trade mark 'as a trade mark', [i.e., in the 'trade marky' sense]?

              The Bench answered this in the affirmative.

3.     Whether Sections 29 (4) and 29 (5) operate in separate and mutually exclusive spheres, i.e., whether, if the Defendant uses the registered trade mark only as a corporate name or trading name or style in respect of dissimilar goods, a Plaintiff can have no remedy and is not entitled to an injunction?

            The Full Bench answered this in the affirmative. 

Conclusion

The Full Bench has interpreted the relevant provisions of the Act, by engaging in a literal interpretation of Sub-Sections (4) and (5) of Section 29, and have consequently made it quite difficult for a well-known mark or an ordinary trade mark to receive protection if it is used as a trade name in case of dissimilar goods.
The reference as decided by the Full Bench of Bombay High Court has far reaching consequences. As per strict interpretation of Sub-Section (5) of Section 29 of Act, the Plaintiff can invoke the said Section only if it is the registered proprietor of the trademark and the Defendant uses such registered trademark as his trade name or part of his trade name or name of his business concern dealing in goods or services in respect of which the trademark is registered. For dissimilar goods or services, Plaintiff cannot avail reliefs under Sub-Section 5 of Section 29 of the Act.

It would be interesting to see if the Apex Court upholds the decision of the Full Bench of the Bombay High Court should Cipla Limited decides to appeal.


[1] 2010(44)PTC(Bom)