Thursday, 1 June 2017

India: Bombay High Court holds that each component of design need not be tested for originality and novelty

In this case, Cello House Hold Products (hereinafter referred to as the ‘Plaintiffs’) filed a suit against Modware India (hereinafter referred to as the ‘Defendants’) in the Bombay High Court seeking an injunction against the Defendants on the grounds of passing off and more importantly, infringement of Design.

The Plaintiffs created a plastic bottle named PURO in May 2016. It got the bottle registered with the Indian Design Office on August 23, 2016, the corresponding registration number being 283345.

The Plaintiffs marketed the bottle in a two-toned color and the packaging it used had words like BPA Free, Insulated Water Bottle, Break Free, Leak Proof etc.

The Defendants launched a similar two-toned bottle in January 2017, which it called KUDOZ in the market with similar type of packaging containing the same words.

The Plaintiffs came to know about the Defendants bottle KUDOZ in the third week of January 2017 and filed a suit for infringement against them.

The Defendants claimed that the design used by Cello for their bottle PURO was a mere way of cobbling together several pre-existing known designs, or mere mosaicking.

The suit went to trial on March 30, 2017. 

Plaintiff’s submissions

The Plaintiffs submitted that their bottle PURO was designed in compliance with the Indian Designs Act, 2000, and has a unique shape, configuration and surface pattern.
They further submitted that their bottle PURO comes with certain features described below:
  •  The configuration of the bottle is such that the body of the bottle is divided into two parts.
  •  It has an aesthetically attractive surface pattern with an oval/egg shaped curve.
  • It has a flip flop cap which is also divided into parts.
  • The main body of the PURO bottle and also its cap contains a unique color combination of two colors. 
They further submitted that the packaging used by them was also unique and had words like BPA Free, Insulated Water Bottle, Break Free, Leak Proof etc. printed on them.

The Plaintiffs asserted that they widely advertised their bottle PURO and had a sale in excess of 7 crore and claimed that their product was widely popular and successful.

The Plaintiffs submitted that the Defendants had copied the same design of PURO bottle and had also used the same packaging with same words printed on the packaging in the market. They further submitted that the Defendants used the same tow-tone colored bottle.

Defendant’s submission

The Defendants submitted in their defense that the design used by the Plaintiffs for their bottle PURO is already known in prior art and prior publication

Further, they submitted that the PURO bottle do not have any novelty nor originality and is only a mere cobbling together several pre-existing known designs, or mere mosaicking.

They further averred that no bottle is novel or original and it is just a bottle and so Cello can’t claim its bottle as novel and original. It further submitted that the design it used for KUDOZ was derived from its various bottles which it had launched earlier to KUDOZ. It also submitted that the shape of PURO bottle is the natural shape of a bottle.

The Defendants claimed that the Plaintiffs have designed their bottle based on the previous design of the bottles manufactured by the Defendants themselves and concluded their arguments by submitting that the Bombay High Court did not have territorial jurisdiction to entertain the suit.

The Court’s decision

The Court observed that the response submitted by the Defendants that a bottle is a bottle cannot be accepted as it is not possible to accept that no vertical cylindrical fluid container can be novel or original.

The Court rejected Modware’s defense of mosaicking and stated that it is not a requirement of the law in infringement or passing off cases in relation to a design that every single aspect must be entirely newly concocted and unknown to the history of mankind.

The Court observed that this is an instance of design infringement by Modware as Modware's product was confusingly and deceptively similar to that of Cello's registered design.

The Court further observed that there was passing off done by Modware because it deceived consumers in believing that the bottle originated from them.

Thereafter, the Court observed that Cello has satisfied all three probanda to induce passing off action namely, (i) reputation and goodwill in the goods; (ii) misrepresentation by the Defendants; and (iii) damages.

The Court concluded that Cello had a good reputation in the market as they were an old company and also the sales turnout of PURO bottle was very high and cello had even advertised their product and the product had achieved a great deal of commercial success.

The Court also observed that Modware was attempting to deceive consumers into believing that its products came from the house of Cello. In other words, it was an attempt calculated to deceive and there was a misrepresentation by Modware that Cello’s product was their own and hence the action of passing off against Modware.

Lastly, the Court rejected the submission of Modware that the Bombay High Court did not have territorial jurisdiction to entertain the suit by pointing out that there was an address printed on its packaging which contained an address of correspondence based in Bombay and hence the Court had the right of territorial jurisdiction. 

S.S. Rana & Co, is now Great Place to Work Certified

Dear Clients & Associates,

It gives us immense pleasure to announce that S.S. Rana & Co., has won the Great Places to Work Certification Program and we are overwhelmed to inform you that our Firm is now Great Place to Work-Certified™!!!

We take this opportunity to thank each and every one of you who trusted us with our services, without which we would have never achieved this milestone.

Every year, more than 8000 organizations from over 50 countries partner with Great Place to Work Institute for assessment, benchmarking and planning actions to strengthen their workplace culture. Great Place to Work Certification Program is the first step for an organization in its journey to build a High-Trust, High-Performance Culture and our organization has successfully accomplished this breakthrough. 

It has been an honor to assist each and every one of you in our journey towards building and sustaining a High-Trust, High-Performance Culture.

We hope that we make great strides in surpassing our own culture assessment results and keep raising the bar for ourselves in the years to come. 

S.S. Rana & Co., hosts a Yoga Session during INTA’s 139th Annual Meet

S.S. Rana & Co., kick-started INTA’s 139th Annual Meeting in Barcelona by hosting a Yoga Session in association with Jiva Mukti Yoga, Barcelona.

We thank all the attendees for choosing our session to begin their yogic journey of health, serenity and fitness. It was our mission in association with Jiva Mukti Yoga, to provide you with the highest quality yoga instruction from experienced and well known trainers. The beautiful studio with soothing light glowing through its windows coupled with the peaceful energy of our friendly trainers inspired relaxation and the unraveling of worries, and offered a complete schedule that strengthened the body, mind and spirit.

On behalf of the entire team at S.S. Rana & Co., we would like to take this opportunity to sincerely thank all the attendees for supporting us in this initiative and participating wholeheartedly. We home to continue this ession next year in Seattle.

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.