India: Relaxation in ‘Startup India’ Norms

The ‘Start- up India’ initiative was launched by Department of Industrial Policy and Promotion (herein referred to as ‘DIPP’) in January, 2016, to encourage entrepreneurship and innovation by providing supportive eco-system, eased regulatory mechanism and funding the budding enterprises. Despite initial optimism, many irregularities were perceived like technical and rigid registration procedure, incubators charging fee imprecisely, lack of monitoring authority and absence of instructing unit. Our prior publication dated June 6, 2016 reported that out of 250 applications filed for seeking benefits under the scheme, only 1 got approved. Witnessing these issues and acknowledging the hassles it creates, the government has come up with simplified norms.

Let’s start with the eminent alterations made. Firstly, the requirement to obtain a certificate of Eligibility from the Inter-Ministerial Board of DIPP has been removed in case of IPR-related matters. Now a certificate of recognition of DIPP would suffice the eligibility criteria to avail IPR-related benefits. Furthermore, the fee of incubator has been fixed to Rs. 5,000 and is limited to Rs. 10,000, in case, the experts’ assistance is taken from outside to assess the innovative idea put forth by a startup. As per the procedure, the startups needs to take letter of recommendation from the incubators before registering on the Startup India portal. The government has also certified 20 private organizations as incubators and is planning to create sector specific incubators under the Atal Innovation Mission along with 500 tinkering labs to provide pre-incubation training and a seed fund for high growth startups.  To keep a check on these reforms, the DIPP has formed a monitoring committee which will take stock of action plan’s implementation once a month.

In another initiative, the DIPP will be launching a learning module on the startup India portal, which will have all the information on how to move forward with an innovative idea. To finance the scheme, the government has already declared the fund for startups in the budget and Rs. 2,500 crore will be released each year for over next four years. After the passage of Finance Bill, the tax benefits will also be extended to aspiring entrepreneurs. These reforms are anticipated to foster innovation and boost entrepreneurship spirit in Country’s youth. 

Recently, the DIPP has again issued a public notice on July 11, 2016 intimating that two provisions in the Scheme have been updated:

• The definition of “start-up” has been revised and the definition of start-up as rendered in explanation 5 of Notification 180(E) published in Part II, Section 3, Sub-section (i) of Gazette of India dated 17.02.2016 would be applicable now.

•  The revised Scheme uplifts the requirement by a start-up to obtain certificate of eligible business from the Inter- Ministerial Board of Certification

Guidelines for Facilitators and start-Ups for filing and processing for patents, designs and trademarks- The Office of Controller General of Patents, Designs and Trademarks (CGPDTM) has on June 08, 2016 issued Guidelines for Facilitators and start-Ups for filing and processing for patents, designs and trademarks. The Guidelines enumerate general provision for the filing and processing of patent, designs and trademark applications in India. 

The endeavours being taken by the Government to encourage innovations and creativity by start-ups is noteworthy. In view of these relaxed rules and facilitations we expect that more and more start-ups would protect their IP and become IP-intensive companies.

India: UGC directs all the major varsities to offer IPR as an elective subject

The University Grants Commission, while reiterating the importance of Intellectual Property Rights, has asked universities to offer it as a generic elective subject under the Choice Based Credit System.

In a letter to universities, UGC secretary, Jaspal S Sandhu said that creations of mind such as inventions, designs for industrial articles, literary, artistic work, symbols, names and images, etc., are protected by Intellectual Property rights. The letter also stated that IPRs should be protected to encourage the creator and also striking a balance between the innovators and public interest by creating an awareness where creativity can flourish.

Keeping in view the importance of IPR which recognizes the work of the creator, the universities are requested to devise, through academic council, inclusion of IPR as a generic elective subject under the Choice Based Credit System (CBCS) in their universities and all other affiliated colleges.

The Chair of the BRICS IP Co-operation Programme is transferred to India at the 6^th BRICS HIPO meet

The 6^th BRICS Head of Intellectual Property Offices (hereinafter referred to as ‘HIPO’) meeting, which was held in Moscow, Russia concluded with the passing of the Chair of the IP Co-operation Programme to India. Shri O.P.Gupta, Controller General of Patents & Designs, Trade Marks and GI (CGPDTM) headed the Indian delegation at the meet, which was chaired by Gregory Ivliev, Head of the Federal Service for Intellectual Property (Rospatent) and attended by all BRICS countries.

The purpose of the conference was to review the progress of Intellectual Property Co-operation between the BRICS countries in the past year and to deliberate and adopt documents within the six cooperation areas based on the BRICS Intellectual Property Offices Cooperation Roadmap.

During the visit, CGPDTM also held bilateral talks with Mr. Gregory Ivliev, where the two delegates exchanged views on bilateral cooperation in areas of examination and IP training, and agreed to conduct expert exchanges in automation, and data exchange protocols.

India: Copyright Dispute between Kriti and Bob results in removal of both the films from YouTube

Controversy between Shirish Kunder's short film ‘Kriti’ and Nepalese filmmaker Aneel Neupane’s short film ‘Bob’, has resulted in the removal of both the films from YouTube. This removal is the outcome of the allegations of both the filmmakers, on each other, for infringement of their copyrights.

Source: Internet

The present controversy began with a Facebook post, by Aneel Neupane, on his Official page, stating that “I’m angry not because Mr. Shirish Kunder practically stole the plot and made it into his film. I’m angry because we didn’t even have lunch money while shooting 'Bob', and a spot boy for 'Kriti' probably made more money than Bob’s entire budget.

"My team and I didn’t work our asses off just so some rich dude from India could turn it into this and get away with it. That’s just not fair.”[1]

In reply to Neupane’s post, Shirish Kunder tweeted “To those comparing 'Kriti' with some short film released on May 12, 2016.’Kriti' was shot in February, 2016. Hope this settles the matter.”[2]

Aneel Neupane further contended that his film Bob was uploaded on Vimeo in October 2015, as a private video which can be shared with close friends.

In reply to Neupane’s allegation, Kunder further stated that, I am not their friend and have no means to access Bob.

The whole controversy result in removal of Kriti from YouTube. The reason of the said removal is highlighted as ‘This video is no longer available due to a copyright claim by Aneel Neupane’.

On June 27, 2016, Shirish Kunder served a legal notice to Aneel Neupane, seeking an unconditional written apology from him. In the said notice, he also demanded that, Neupane should refrain from making any oral or written comments on Kriti, take down Bob from the internet immediately and refrain from publishing the same or any part thereof on any other medium. The notice further alleged that, ‘it was perhaps him who came across a script of Kriti — which he had shared with "a few people" — and was then inspired to make Bob’[3]. “Assuming your position is correct that the two films are so similar, then it is you who has infringed our client's copyright”[4], the notice reads.

The controversy further results in the removal of Bob from YouTube. The reason for removal reads as “This video is no longer available due to a copyright claim by Abhayanand Singh (INDIE MOVIZ PTE LTD). Abhayanand Singh of the Singapore-based Indie Muviz Pte Ltd is the producer of Kriti. Although the movie is blocked from YouTube, it can still be viewed on Vimeo.

None of the parties have approached the Court for the settlement of the controversy, but the said controversy is not likely to be resolved by the parties on their own. It will really be interesting to observe further developments in the field.

[1]http://www.indiatvnews.com/entertainment/bollywood-manoj-bajpayee-radhika-apte-kriti-shirish-kunder-copy-allegations-truth-336437

[2]http://www.indiatvnews.com/entertainment/bollywood-manoj-bajpayee-radhika-apte-kriti-shirish-kunder-copy-allegations-truth-336437

[3]http://www.huffingtonpost.in/2016/06/28/kriti-copyright-bob_n_10726812.html

[4]http://www.mumbaimirror.com/entertainment/bollywood/Shirish-sends-legal-notice/articleshow/52947708.cms

India: WWE wins www.wwetshirts.in domain case

On June 6, 2016, Dr. Vinod K. Agarwal, sole arbitrator appointed by National Internet Exchange of India (hereinafter mentioned as NIXI), has ruled in favor of World Wrestling Entertainment Inc., by transferring the domain name ‘www.wwetshirt.in’ to it.

Brief Background

Complainant, World Wrestling Entertainment Inc., is a well- known company, incorporated in State of Delaware, United States of America. Complainant had initially promoted its business under the name of World Wide Wrestling Federation. Complainant was then acquired by Titan Sports Co. and in 2002, its name was changed to World Wrestling Entertainment. On April 7, 2016, Complainant formally renamed itself ‘WWE’. It is involved in developing, producing and marketing television programmes, live events and licensing and sale of branded consumer products. Complainant has registered its trademark ‘WWE’, in various classes, and have also registered many domain names, incorporating WWE.

On April 18, 2016, the Complainant filed a complaint with the NIXI, stating that the Respondent has registered a domain name which is similar to the Complainant’s trademark. For the purpose of arbitrating the present matter, NIXI appointed a sole Arbitrator. Notice, dated May 20, 2016, was send to the Respondent, requesting him to submit his response latest by June 5, 2016. There was no response sent by the Respondent, hence the ex- party award is passed by the Arbitrator.

Contentions of the Complainant

Contentions regarding the similarity of the domain name

• Complainant’s trademark ‘WWE’, is registered in 63 regions including India. Complainant has also registered 300 domain name incorporating WWE trademark.
• Respondent’s domain name incorporates the entire trademark of the Complainant, hence Respondent’s domain name is identical and substantially similar to Complainant’s trademark. The Complainant also cited various case laws to support its contention.

Contention regarding the legitimate interest of the Respondent

• The Respondent has not been commonly known by the mark ‘WWE’, as the name of the Respondent organization is not known. Moreover, the Respondent does not have any legitimate interest in respect of the disputed domain name ‘www.wwetshirt.in’. Hence, the Respondent registered the domain name for the sole purpose of misappropriating its association with the Complainant and to create confusion in the minds of the general public.

Contentions regarding the use in bad faith

• The main objective of registering the disputed domain name is to mislead the public. The Respondent has mala fide intention to earn profit from the reputation of Complainant’s trademark.
• There is a likelihood that the visitors of the Respondent’s website may believe that the Complainant has licensed the Respondent to register the disputed domain name or the Respondent has some connection with the Complainant.

Observations of the Arbitrator

• According to Indian Domain Name Dispute Resolution Policy, the Complainant have to prove;
• The domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights:
• The Respondent has no rights or legitimate interests in respect of the domain name that is subject to the complaint;
• The domain name in question has been registered and is being used in bad faith;

Observations regarding the similarity of the domain name

• The word ‘wwetshirt’ may have many interpretations like, w we tshirt, w wet shirt, wwe tshirts, etc. In the present case, no response has been submitted by the Respondent, hence it may be concluded that the domain name includes the Complainant’s registered trademark ‘WWE’.
• The Complainant has registered many domain names with the word ‘WWE’ and most of them have been registered by the Complainant before the date of registration of Respondent’s domain name.
• It can be inferred that the disputed domain name is substantially similar to the registered trademark of the Complainant.

Observations regarding the legitimate interest of the Respondent

• The Respondent may establish his legitimate interest in the domain name, by proving any of the following;
• Before the notice of dispute to the Respondent, the Respondent’s use of the domain name is in connection with the bona fide offering of the goods or services;
• The Respondent is commonly known by the domain name;
• The Respondent is making legitimate non- commercial use of the domain name, without harming or using the reputation of the Complainant’s trademark.
• As there is no response from the Respondent, hence based on the contentions of the Complainant it can be concluded that the above circumstances does not exist in the present case and the Respondent does not have any right or legitimate interest in the disputed domain name.

Observations regarding the use in bad faith

• Any of the following circumstances may prove the bad faith of the Respondent;
• The Respondent has acquired the domain name for the purpose of transferring it to the Complainant or to the competitors of the Complainant, in exchange of the valuable consideration.
• The Respondent has registered the domain name, in order to restrict the Complainant from reflecting its trademark in the corresponding domain name.
• The Respondent has registered the domain name for the purpose of disputing the business of the Complainant.
• By using the domain name, Respondent is trying to gain commercial benefit by creating likelihood of confusion among the general public.
• The Respondent has provided an incomplete address, due to which the copy of the complaint sent by post could not be served to the Respondent. This lead to the presumption that the domain name in dispute was registered and used by the Respondent in bad faith.

Held

The disputed domain name is confusingly similar to the Complainant’s trademark. The Respondent has no legitimate interest in the disputed domain name and the same was registered by the Respondent in bad faith. The Arbitrator ordered that the domain name ‘www.wwetshirt.in’ shall be transferred to the Complainant.

India: Delhi High Court on the issue of theft of company data by former employees

Brief Facts of the Case 

In this case, an individual namely, Tarun Tyagi (hereinafter referred to as the Petitioner) filed the present petition for quashing an order passed by the Chief Metropolitan Magistrate on November 6, 2013 in the matter.

Background of the case

Initially, the complaint was filed against the Petitioner by the company Unistal Systems Pvt. Ltd. (hereinafter referred as the Complainant Company) of which the Petitioner was an employee from 2003 to 2005. The Complainant Company is engaged in the business of providing data recovery services. 

Allegedly, after leaving the services of the Complainant in September, 2005 the Petitioner set up a company namely M/s Prodata Doctor Private Limited (hereinafter referred as the Petitioner’s Company). The Petitioner’s Company was also engaged in a similar business of data recovery and developing software applications for computers.

The Complainant Company in suspicion of theft of its source code by the Petitioner registered a FIR with the CBI (Central Bureau of Investigation) wherein it alleged that somewhere around March, 2005 the Petitioner had stolen the source codes of a software known as “Quick Recovery” and the same was offered for sale by the Petitioner’s company under the name “Prodatadoctor”.

In view of the above complaint, the CBI conducted seizure of documents and disks from the Petitioner’s company. Meanwhile in 2008, the Complainant Company preferred a suit for perpetual injunction and damages against the Petitioner alleging infringement of its copyright of software named, Quick Recovery. The suit of the Complainant Company was based on the footing that the Petitioner had stolen the source code of a software developed by it and the same was put up for sale by the company owned by the Petitioner by making some cosmetic changes in the software.

Pursuant to the aforesaid, the CBI filed a charge sheet against the Petitioner under Section 66A of the Information Technology Act and Copyright Act.

Thereafter, the Petitioner preferred an application seeking supply of copies of documents but the said application was dismissed by the impugned order passed by the Chief Metropolitan Magistrate stating that no cloned copies of hardware containing incriminating evidence can be prepared with the protected software to avoid its further misuse by the Petitioner during pendency of case.

Petitioner’s submission

That the rewriting of a language which is otherwise freely available online on the basis of an original idea of which the Petitioner or such other person may have carried, is clearly permissible in law and hence as contended the Complainant had no copyright in the software source code. 

Court’s order

The High Court of Delhi in view of the facts and circumstances of the case did not set aside the impugned order of Trial Court and observed that the facts indicated that there were chances of the software being misused by the Petitioner.

The Court was of the view that the findings in the impugned order were free from any infirmity and hence no interference was warranted in the same.

Conclusion

The present case reflects a very sensitive issue i.e. theft of data or source codes by the employees. As a company’s data is accessible by employees, it becomes vulnerable to IP infringement. Hence, it is essential that adequate protection of data is ensured and confidentiality clauses are incorporated in employment agreements in such a manner that they firmly prohibit misuse of data by employees.

India: Kochi Startup Village Launches World’s First Digital Incubator for Students

A recent statement by the Kochi Startup Village stated that, the country needs more than one million new jobs a month for the next 20 years to employ all its youth and these jobs would mostly come from new start-ups if the right environment is created.

Indian Government has also recognized the importance of Start-ups for the development of the country. Government has taken many steps like, Start-up action plan, Public Private Partnership (PPP) model for incubators, etc., to create a proper environment for Start-ups. Recently, one such step is taken by India’s First Digital State, Kerala.

World’s first digital incubator for student Start-ups will be launched in Kerala on July 13, 2016. This incubator will provide mentorship and guidance to young entrepreneurs from all over the country.

SV.CO. the digital avatar of Startup Village, will be launched by Chief Minister Pinarayi Vijayan, Infosys co-founder and Startup Village chief mentor Kris Gopalakrishnan and National Science and Technology Entrepreneurship Development Board head H K Mittal.

Students can apply individually or they can form a team and then pitch their product or idea to the mentors. Once selected, students would be guided and mentored to help create a prototype within 6 months, and launch in the market quickly.

Application would be approved based on several pointers, mainly being its market feasibility and the innovation in solving a particular problem.

Based on the feedback from customers and mentors, these students can gradually climb up the ladder, and get access to incubators, accelerators, and even raise angel funding. Besides, the teams can be hired collectively by large firms, and they can be even sponsored for higher studies.

Gopalakrishnan said that students, especially from tier 2 and tier 3 cities, are deprived of access to the best faculty and mentors from startup nerve centers like Bengaluru or Silicon Valley and this venture "would address the problem to a large extent".[1]

The Digital Incubator, which was built over the last 12 months, has already received more than 1,000 applications from students from across Kerala as well as towns like Vadodara and Vishakhapatnam.

[1]http://www.bgr.in/news/worlds-first-digital-incubator-to-be-launched-for-student-startups/

World Industrial Design Day celebrated throughout the world!

Source : Internet

World Industrial Design Day is celebrated annually on June 29, in recognition of the importance of industrial design in our daily lives. International Council of Societies of Industrial Design (hereinafter referred as ICSID) launched World Industrial Design Day in 2007, its 50th anniversary year, to promote the profession of industrial design and highlight the positive impact industrial design can have on society.

This year’s theme for World Industrial Design Day, 2016 was ‘Youth in Design’, which highlights the role of young designers in the development of Industrial Design. ICSID’s officials interact with young designers, discussing their problems and their goals. For the occasion, ICSID has published an Op-Ed addressing the shift in the industry with young industrial designers at the helm, called Youth and Design – A Powerful Combination.

The main objectives of World Industrial Design Day 2016, were-

·         Celebrate the contributions of young designers in industrial design.

·         Consult with young Designers in the millennial cohort.

·         Raise awareness of Industrial Design and its role in effecting positive change.

For the celebration of World Industrial Design Day 2016, many events were organized by ICSID members and the wider design community in more than 20 countries around the world, including World Design Capital cities, Taipei, Mexico City, and Seoul. Support for Design profession was also shown on social media. Canadian Government had organized, live Question and Answer session with an industrial design examiner from the Canadian Intellectual Property Office. IDSA (Industrial Designers Society of America) Professional, Student and International members, Board members, and Ambassadors posted how they celebrated the occasion, with events ranging from a cookout at Auburn University to parties at design studios across the globe, embracing design in all forms.

World Design Capital (WDC) is designated by ICSID every two years to recognize a city's innovative use of design for economic, social and cultural development and to showcase effective design-led urban revitalization strategies that other cities can benefit from. Past cities to hold the WDC title include Torino (Italy) in 2008, Seoul (South Korea) in 2010, Helsinki (Finland) in 2012, and Cape Town (South Africa) 2014. Taipei (Taiwan) is this year's WDC, and Mexico City has just been named WDC 2018.

S.S. Rana & Co. celebrates World Industrial Design Day 

For the last five years, S.S. Rana & Co. in collaboration with Vidya Darshan Rana Charitable Trust has been organizing ‘CREATIO’^TM, the annual Design Competition to invite young innovators to create new designs and aims to educate people, raise awareness and provides a platform for all to exhibit their talent.

The competition also intends to provide a platform to the students to share their ideas and enable them as well as their schools and/or colleges in getting National and International recognition.

This year International Council of Societies of Industrial Design (ICSID) had chosen the theme of “Youth in Design” to motivate the intellectual creators to come forward and create some innovative industrial design.

Following the same path ‘CREATIO’^TM  invited young artists to come up with any industrial designs which may relate to any field including Textile & fashion, Furniture, Household goods (including kitchen appliances), Home décor (interiors and accessories), Pottery, Jewelry, Games, toys & sports or any other new design which would help to redefine the industry.

Out of the total entries received, we have shortlisted the winning candidates -

The winners of the Competition are – 

1.      Mamta, whose Design is titled ‘Multi Use Monitor’ 

 2.      Neeta Malik, whose Design is titled ‘Texture on Lamp’

  

 

 3.      Siddharth Mohanty whose Design is titled ‘Pendulum Chair Stopper’.

 

Heartiest Congratulation on behalf of S.S. Rana & Co and Vidya Darshan Rana Charitable Trust, to all the winners, winning prizes worth ₹ 7,500, ₹ 5,000 and ₹ 2,500, respectively.

India: Reliance Industries’ plea of trademark infringement against the Concord Enviro Systems is dismissed by Bombay HC

Recently, Hon’ble Justice Mr. S. J. Kathawalla of the Bombay High Court in the case of Reliance Industries Ltd. V. Concord Enviro Systems Pvt. Ltd., has ruled against Reliance Industries, dismissing the suit filed for trademark infringement of Reliance Industries by the Concord Enviro Systems Pvt. Ltd.

Case Brief

Reliance Industries claimed injunctive reliefs on the basis of infringement of its registered trademarks, infringement of copyright and passing off, on the ground that the logo of the Concord Enviro Pvt Ltd,  (herein refereed as Concord logo/mark) is deceptively similar to the their registered trademarks consisting of a distinctive logo (herein referred as Relaince logo/mark). On analysising the marks, the Court came to the conclusion that there is no similarity between both the marks. Hence the Concord Pvt Ltd is not liable for infringment.

Contentions of Plaintiff (Reliance Industries Ltd.)

• That Concord is using a mark which is deceptively similar to Reliance’s registered trademark, in respect of goods falling in classes 7, 9, and 11 and services falling in class 40.
• That the mark of Reliance is a well-known trademark within the meaning of Trade Marks Act, 1999. Therefore, Reliance is entitled to the reliefs of infringement not only in respect of goods failing in Classes in which their logo is registered but also in respect of goods falling in other classes in respect of which Concord is using and/or is intending to use their mark.
• That the logo of Concord is both visually and structurally similar.
• That Concord has adopted the whole of Reliance’s mark and by adding a drop of water as a background to the essential feature, makes no difference.
• That a purchaser familiar with the Reliance’s logo is bound to get confused when he sees the Concord’s mark, because he does not have both the marks before him and he has a general impression of the Reliance’s mark.
• That the intention of Concord to create deception and confusion is clear from the fact that the logo of Reliance has been registered from 1999 and has been extensively used. Concord did not deny that they were unaware of Reliance’s mark. Hence Concord is not honest in adoption of the mark and had the intention to cause confusion in the minds of general public.  
• That the use of the Concord logo is without due cause and by such use they are taking unfair advantage of the distinctive character and reputation of Reliance registered logo.
• That Reliance is entitled to the relief on the grounds of infringement under section 28 and 29(4) of the Act and passing off since Concord’s mark is deceptively similar to Reliance’s mark.
• That Reliance is also entitled to interim reliefs on the basis of copyright. The logo of Reliance is an original artistic work. The logo is registered as an artistic work under the Copyright Act. The Concord mark is a substantial reproduction or a colorable imitation of the plaintiff’s artistic work and the entire artistic work of Reliance is incorporated in the Concord logo by making slight alteration.
• The existence of water droplet in Concord logo is irrelevant, as Concord has otherwise copied the essential feature of the Plaintiff's registered logo i.e. the curve. Therefore, the water droplet forming a part of the Concord logo is liable to be ignored.
• That the logo of Reliance when rotated to the right appears to be an inverted or reversed or mirror image of the Concord’s logo.

Contentions of Defendant (Concord Enviro Systems Pvt. Ltd.)

• The claim that the rivals marks are identical and/or deceptively similar is wholly misconceived and/or baseless, and/or even otherwise untenable in law.
• That the rival marks are as different as chalk and cheese. There is no similarity at all between them. This is apparent to the naked eye itself and disentitles Reliance from any reliefs whatsoever. The Concord mark is in the shape of a drop, as contrasted with the round circular shape of the logo of the Plaintiff.
• That the Concord logo symbolizes and/or conveys the idea of Concord’s initials being 'c' and 'e' artistically depicted inside the said drop, while Reliance itself calls its logo as the 'R' logo. Concord’s initials are combined in a way that they give a feeling of fluidity and energy to the symbol. The 'c' of Concord is embracing the 'e' of Enviro which means the Company is contributing to create a better and cleaner environment. This is totally absent in the Reliance logo.
• That the contention of Reliance to ignore the water droplet, or that its presence is irrelevant, is contrary to the settled law, as a mark is required to be compared as a whole.
• That Reliance mark’s curve tapers towards the left and becomes extremely wide/squarish to the right, giving it a unique shape. The curvature to the right is wide/squarish and angled such that the ‘flame’ in the middle leads to a formation of an ‘R’, and the “curve” is very ‘rounded’ and/or “circular” and virtually completes “circular shape”. All these facets are absent in the “curve” appearing in the Concord mark.
• That the convoluted mode of comparison of marks by rotating right, as contented by the Reliance, is absolutely impermissible.
• That Reliance is seeking a monopoly on a curve of virtually every shape and/or size and/or dimension and/or design and/or artistic work, which is clearly impermissible.
• That the consumers of Concord would buy their products with deliberation. These products are not sold across the counter. So there is no chance of confusion.
• That Concord acted in good faith and honestly adopted their mark.
• That plaintiff has miserably failed to make out a case under section 29(4) of the Act.
• That Reliance , an extremely powerful corporate with unlimited resources is seeking to brow beat and harass, honest and bona fide entities doing legitimate business, and is trying to seek an all pervasive monopoly on a curve, which is impermissible in law.

Observations of the Court

There is no similarity between the Plaintiff's logo (curve) and the curve used by the Defendant. There is a clear difference and/or distinction between the Plaintiff’s curve which is in round circular shape and the curve used by the Defendant. The 'curve' used by Concord is the initials of the ‘Concord Enviro’ i.e. 'c' and 'e', which are artistically depicted inside the water droplet, which is an essential feature of their logo. The Reliance itself calls its logo (‘curve’) the 'R' logo, since the letter 'R' is written in an artistic manner inside the circle. In the Reliance 'R' logo, 'R' is formed in inverse space that is white colour or no colour. Hence there is no question of confusion in the minds of the general public. The Concord has acted in good faith and their logo is honest and bonafide. 

Held

The rival marks are completely different. There is no question of confusion/damage to Reliance’s reputation. The allegation made by Reliance that Concord is guilty of trademark infringement, passing off and copyright infringement is not established. Reliance has therefore, failed to make out a prima facie case. The Notice of Motion is therefore dismissed with costs.

India: CCI to Probe ABB India for unfair business ways

Recently, the Competition Commission of India (hereinafter referred as ‘Commission’), in the case of InPhase Power Technologies Private Limited V. ABB India Ltd. ruled in favor of the informant, ordering the Director General to conduct an investigation on the matter and submit its report within 60 days from the date of receipt of the order.

Brief Background

The Informant deals in designing, developing and manufacturing of Power Quality and Power Conversion products indigenously in India; and supplies them to various industries.

The Opposite Party is a public listed company and a subsidiary of Switzerland based ABB Group, engaged in the business of manufacturing of electrical equipment like switch gears, drives, automation, etc. It also manufactures dynamic reactive power compensators and harmonic filters which are Power Quality and Power Conversion products.

The Informant has developed a Static Synchronous Compensator (STATCOM) named as IPC-150 SCOM, which is claimed to be more advanced than the product of the Opposite Party in terms of technology and features. The Informant has applied for a patent of this product and the patent application bearing no. 4055/CHE/2015 dated August 5, 2015 in that regard is pending.

The Opposite Party has developed two static synchronous compensators (hereinafter referred as STATCOMs) namely STATCON and PQC STATCON. The Opposite Party have applied for a patent over PQC STATCON and the application in that regard is currently pending before the patent authorities.

The Informant filed a complaint to Competition Commission of India, stating that the Opposite Party is abusing its dominant position, in the relevant market, to restrain the sale of Informant’s product.

Contentions of the Informant

• Positive response of the consumers towards the product of the Informant prompted the Opposite Party to find ways to suppress the technological innovation/development and competition posed by the product of the Informant.
• The Opposite Party abused its dominant position by instituting civil and criminal litigation with mala fide intention to stop the informant from doing business. The Opposite Party has filed the patent infringement case against the Informant and has obtained an ex- party ad interim injunction order, dated July 25, 2015. The said order is passed by the Court of the City Civil and Sessions Judge, Bengaluru. The said order has put the Informant on the verge of bankruptcy as it is not able to do business in the relevant product. Vide another order dated February 20, 2016, the City Civil and Sessions Judge, Bengaluru has made the ad interim injunction absolute.
• The relevant market in the present matter is ‘manufacture and sale of Power Quality Compensators with IGBT technology for low voltage i.e. below 1000V in India’. As per the Research Report of Ken Research (2015) titled “India: Reactive Power Compensation Market Outlook to 2020”, the Opposite Party is dominant in the relevant market with 32% market share which is almost double the next player i.e. Alstom which commands 18% market share. 
  Due to wide product portfolio of the Opposite Party, the consumers are totally dependent on it for procuring several products other than power quality products. The Opposite Party have taken undue advantage of this dependency of the consumers, by forcing them to purchase its power quality products i.e. PQC STATCON and not to deal with the Informant.
• The Opposite Party has distributed some letters and other written materials apart from making personal calls to the customers and suppliers stating that the Informant is an illegal and sham company against which legal proceedings are being initiated. To support this contention, Informant has made the submissions on February 17, 2016 and March 17, 2016 giving copies of declarations made by a consumer and a distributor of the Opposite Party.
• The Informant has cited the previous Judgement of the Commission in Case no. 105 of 2013[1] and pointed that abusing judicial process to restrict competition could be a subject matter of Section 4 of the Competition Act, 2002 (hereinafter referred as Act). The Informant also argued that the case relating to the patent infringement, which is pending before the City Civil and Sessions Judge, does not concern anti-competitive practices and abuse of dominance by the Opposite Party.
• The Informant pointed out 23 differences between the products of the Opposite Party and the Informant, and submitted that there is neither any patent violation nor any theft of information by the Informant. Hence, the litigations instituted by the Opposite Party are frivolous and with mala fide intention to restrict competition by ousting the Informant from the business.
• KPMG Report, submitted by the Opposite Party, cannot be relied upon as the original hard disc of the computer used by Mr. Panna Lal Biswas was damaged and the report is based on the examination of the imaged hard disc.

Contentions of the Opposite Party

• The Commission does not have jurisdiction in the present matter in view of the pendency of the patent infringement suit before the Court of the City Civil and Sessions Judge, Bengaluru.
• The Informant has misled the Commission by conflating two different relevant markets i.e. low voltage and high voltage, to present a distorted view of Opposite Party’s market position. The delineation of the relevant market to only IGBT technology is incorrect as IGBT is one type of interchangeable technology on the basis of which power capacitors operate.
• As per the figures from Indian Electrical and Electronics Manufacturer’s Association (IEEMA), in terms of Mega Volts Amps Reactive (Hereinafter referred as MVAR) total ‘low voltage power capacitor’ manufactured in 2015 was 28708 MVAR, out of which the Opposite Party manufactured only 900 MVARs. Accordingly, its market share is only 3.13% in the market of low voltage power capacitors. In context of the wider relevant market i.e. power capacitors of both high and low voltage power capacitors, 48292 MVARs were manufactured during 2015, out of which, the Opposite Party manufactured roughly 9400 MVARs which translates to 19.4% market share. Hence, the Opposite Party is not the dominant player in the relevant market as it faces competition from four other major manufacturers.
• The letter, submitted by the Informant, is a precautionary step taken by the Opposite Party, as they heavily invested in the creation and protection of its valid intellectual property and such letter is not in any manner indicative of its participation in any anti-competitive or abusive conduct.
• Three ex-employees of the Opposite Party have stolen confidential information relating to innovation and development of their product and the same information and technology has been used by the Informant for developing IPC 150 SCOM. To support his contention, Opposite Party has referred the forensic audit report of the hard disc and computer data of Mr. Panna Lal Biswas, prepared by KPMG.

Observations of the Commission

• It is observed that the Commission is the appropriate forum to consider matters concerning anti-competitive agreements and abuse of dominant position; and mere pendency of a patent infringement suit before a civil court does not exclude the jurisdiction of the Commission in the said matters if the Informant is able to make out a prima facie case for contravention of Section 3 or Section 4 of the Act.
• The relevant product market has to be defined keeping in view the competition that prevails among substitutable products available in the market.
• The Commission agrees with the Informant and delineates the relevant product market in the present case as, the market for “Manufacture and Sale of Power Quality Compensators with IGBT technology for low voltage i.e. below 1000V”.
• The figures submitted by the Opposite Party are related to production of capacitors, which is not the relevant product in the instant case. Although exact data pertaining to the relevant market has not been filed by either parties as they are not readily available in the public domain. Thus, based on the information available on record, prima facie, the Opposite Party is found to be dominant in the relevant market.
• The steps taken by the Opposite Party, during the pendency of the patent applications and patent infringement litigations, to dissuade its suppliers and customers from dealing with the Informant appear to be anti-competitive in nature.
• The Opposite Party attempted to set a mechanism whereby it gets intimation if any of its competitor approaches its customers.
• The Opposite Party through its abusive conduct has attempted to limit supply and scientific development in the market and denied market access to the Informant.

Held

Under the provisions of Section 26(1) of the Act, the Commission directed the DG to cause an investigation into the matter and to complete the investigation within a period of 60 days from date of receipt of this order. During the Course of investigation, if involvement of any other party is found, the DG shall investigate the conduct of such other parties who may have indulged in the said contravention.
[1] M/s Bull Machines Pvt. Ltd. v/s M/s JCB India Ltd. & Ors.