case study on intellectual property rights in india

5 Leading Cases of Intellectual Property Rights

In this article, the author has discussed 5 leading case laws under patent law, copyright law, and trademarks law..

5 Leading Cases of Intellectual Property Rights | Overview

Bayer Corporation v. Union of India
Diamond v. Chakrabarty
Yahoo! Inc. vs. Akash Arora & Anr
The Coca-Cola Company v. Bisleri International Pvt. Ltd. and Ors
D.C. Comics v. Towle

Introduction

Intellectual Property Rights has proved itself to be invaluable in all senses in the socio-economic fields in the world. It has gained immense popularity in the recent past. It is what motivates people to create and innovate. Things which are governed by Intellectual property laws are creations of the mind. In this article, the author has have discussed 5 leading case laws under Patent Law, Copyright Law, and Trademarks Law.

1. Bayer Corporation v. Union of India [1]

This landmark judgment is the first-ever case in India dealing with the granting of a compulsory license under an application made under Section 84 of the Patents Act, 1970.

The petitioner, Bayer Corporation Ltd incorporated in the USA invented and developed a drug named ‘Nexavar (Sorafenib Tosylate)’ used in the treatment of persons suffering from Kidney Cancer (RCC). The drug was granted an international patent in 45 countries including India. Under normal circumstances, a third party can manufacture and sell the patented drug only with the permission or license granted by the patent holder.

Natco, a drug manufacturer had approached Bayer for a grant of a voluntary license to manufacture and sell the drug at a much lower price of Rs. 10,000/- per month of therapy as against the price of Rs. 2, 80,428/- per month of therapy charged by the petitioner.

The request was denied and hence they made an application to the Controller under section 84 of the Act for a compulsory license on the ground that the petitioner had not met the reasonable requirement of the public in respect of the patented drug. It was granted on the condition that the applicant had to sell the drug at Rs 8,800/- per month and was directed to pay 6% of the total sale as royalty to the petitioner. [2] Natco was also directed to sell the drug only in India and to make the drug available to at least 600 needy patients each year free of charge.

Aggrieved by the order, the petitioner approached the Intellectual Property Appellate Board (IPAB) contending that the order passed was contrary to the provisions of the Act since the drug was made available at a lower price by Cipla. The board, however, rejected the contention by holding that the drug was not made available at a cheaper price by the petitioner and that the petitioner’s stance was detrimental to the public at large who are in need of the drug. Hence, the petitioner preferred an appeal in the High Court. [3]

Issues Involved

The major issues for consideration by the High Court were:

Has the requirements under Section 84(1) been satisfied for granting a compulsory license?
Whether supplies by infringers of a patented drug to be considered/taken into account to determine the satisfaction of reasonable requirement test?

With regard to Issue No.1, the Court held that all the three requirements under clauses (a), (b) and (c) of Section 84(1) for granting compulsory license has been satisfied in this case.

The court opined that the question of whether the reasonable requirement of the public has been satisfied under Section 84(1) (a) is to be determined after examining the evidence produced by both parties.

In the present case, after examining the figures given by the Petitioner in affidavits it is clear that the requirements haven’t been met by the petitioner. It was held that the dual pricing system under the Patient Assistance Programme would not satisfy the conditions of Section 84(1) (b) and hence the drug was not considered to be available at a reasonable price to the public. [4]

On the question of whether the patented drug has been worked in the territory of India, the Court held that when a patent holder is faced with an application for a Compulsory License , it is for a patent holder to show that, the patented invention/drug is worked in the territory of India by the manufacturer or otherwise. It is not compulsory that “ Worked in India ” should include “ manufacture ” if the patent holder can furnish valid reasons before the authorities for not manufacturing in India keeping Section 83 of the Act in mind.

On Issue No. 2, the Court answered the question negatively and held that the supply by the infringers, Cipla and Natco could not be taken into account since their supply could stop any day. It is only when the patent holder grants a de facto license could infringer’s supplies be taken into account. The obligation to meet a reasonable requirement of the public is of a patent holder alone either by itself or through its licensees.
Section 84(7) of the Act, provides a deeming fiction which provides that the reasonable requirement of the public is not satisfied, if the demand for a patented article is not met to an adequate extent in which regard the patent holder has failed in the present case.

The decision, in this case, will go a long way to ensure that the interests of the public are drowned by reason of the personal interests of the patent holder in necessary circumstances.

2. Diamond v. Chakrabarty [5]

This was the historical decision in which the US Supreme Court considered the patentability of a living micro-organism. The decision is one which will have a huge impact in the field of Biotechnology.

Ananda Chakrabarty, a microbiologist filed patent claims for human-made, genetically engineered bacterium that was capable of breaking down multiple components of crude oil. A patent examiner rejected the patent because it was outside of the scope of the patentable subject matter under 35 U.S.C. §101 .

The Patent Office Board of Appeals affirmed and ruled that living things are not patentable subject matter under Section 101. The Court of Customs and Patent Appeals reversed this decision holding that the fact that micro-organisms are alive is insignificant for the purpose of patent law. [6] Diamond, the Commissioner of Patents, petitioned the United States Supreme Court for certiorari against the decision of the Court of Appeals.

Issue Involved

The main issue before the Court was whether the respondent’s micro-organism plainly qualifies as patentable subject matter.

Arguments Raised by the Appellant

Diamond raised the argument that with the enactment of the Plant Patent Act, 1930 and Plant Variety Protection Act, 1970 Congress implicitly understood that living organisms were not within the scope of 35 U.S.C. §101. He also relied upon the judgment in Parker v. Flook [7] wherein it was held that courts should show restraint before expanding protection under 35 U.S.C. §101 into new, unforeseen areas. [8]

Section 101 of Title 35 U.S.C. provides for the issuance of a patent to a person who invents or discovers “any” new and useful “manufacture” or “composition of matter.” The court held that a live, human-made micro-organism is a patentable subject matter under Section 101 and that the respondent’s microorganism constituted a “manufacture” or “composition of matter under the statute. The court opined that the organism was a product of human ingenuity “having a distinctive name, character, and use”. [9]

Moreover, the Court rejected the appellant’s argument by holding that the patent protection afforded under the Plant Patent Act, 1930 and Plant Variety Protection Act, 1970 was not evidence of Congress’ intention to exclude living things from being patented. The court pointed out that genetic technology was not foreseen by Congress do not make it non-patentable unless expressly provided. The Court held that the language of the Act was wide enough to embrace the respondent’s invention. [10]

3 . Yahoo ! Inc. vs. Akash Arora & Anr [11]

This landmark judgment is the first case relating to cybersquatting in India. Cybersquatting has been defined as the registration, trafficking in, or use of a domain name that is either identical or confusingly similar to a distinctive trademark or is confusingly similar to or dilutive of a famous trademark. [12]

The plaintiff is a global internet media who is the owner of the trademark ‘Yahoo!’ and the domain name ‘Yahoo.Com’ , which are very well-known and render services under its domain name. While the application of the plaintiff for registration of the trademark was pending in India, the defendant Akash Arora started providing similar services under the name ‘Yahoo India’ .

The present case is brought out by the plaintiff for passing off the services and goods of the defendants as that of the plaintiff by using a name which is identical to or deceptively similar to the plaintiff’s trademark ‘Yahoo! ‘ and prayed for a permanent injunction to prevent the defendant from continuing to use the name.

Whether an action for passing off could be maintained against services rendered?
Whether a domain name is protected under the Trade and Merchandise Marks Act, of 1958?
Whether the use of a disclaimer by the defendant will eliminate the problem?

The Delhi High Court extensively examined the issues and rejected the defendant’s contention that an action for passing off could only be brought against goods and not services rendered by virtue of Section 2(5), Sections 27, 29 and Section 30 of the Act. It was held that the passing off action could be maintained against the service, as the service rendered could be recognized for the action of passing off.

The law relating to passing off is well-settled and clear. The principle behind the same is that no man can carry on his business in a way that can lead to believing that he is carrying on the business of another man or has some connection with another man for the business. [14] The plaintiff is entitled to relief under Section 27(2) and Section 106 of the Act which is governed by principles of Common law.

The Court relied upon the landmark judgment of Monetary Overseas v. Montari Industries Ltd. and reiterated that “When a defendant does business under a name which is sufficiently close to the name under which the plaintiff is trading and that name has acquired a reputation and the public at large is likely to be misled that the defendant’s business is the business of the plaintiff, or is a branch or department of the plaintiff, the defendant is liable for an action in passing off.” [15]

With regard to Issue No. 2, the Hon’ble Court relied on the US case Card Service International Inc. vs. McGee [16] , and held that the domain name serves the same function as a trademark and is hence entitled to the same protection.
While discussing the impact of the disclaimer issued by the defendant, the Court held that it would not eliminate the problem because of the nature of Internet use. [17] The users might not be sophisticated enough to understand the slight difference in the domain name to distinguish between the two.

The Court addressed each of these issues and came to the conclusion that Yahoo Inc. had a good reputation in the market and that the name adopted by the defendants were deceptive and misleading causing damage to the reputation of the plaintiff and undue gain for the defendants. In consequence, the court granted an injunction in favour of the plaintiff under Rules 1 and 2 of Order 39 of CPC, 1908.

4. The Coca-Cola Company v. Bisleri International Pvt. Ltd. and Ors. [18]

This case is better known as the " MAAZA War case ". This was decided by the Delhi Court.

The plaintiff (Coca-Cola) is the largest brand of soft drinks operating in 200 countries whereas Defendant No1 earlier known as Acqua Minerals Pvt. Ltd. used to be a part of the Parle Group of Industries. The owners of Bisleri had sold the trademarks, formulation rights, know-how, intellectual property rights, and goodwill etc. of their product MAAZA amongst others to the plaintiff by a master agreement.

In March 2008, when the plaintiff filed for registration of the MAAZA trademark in Turkey, the defendant sent a legal notice repudiating the Licensing Agreement thereby ceasing the plaintiff from manufacturing MAAZA and using its trademarks etc. directly or indirectly, by itself or through its affiliates. In consequence, the plaintiff claimed permanent injunction and damages for infringement of trademark and passing off. The plaintiff also alleged that the defendant had unauthorisedly permitted the manufacture of certain ingredients of the beverage bases of MAAZA to be manufactured by a third party in India. [19]

Does the Delhi High Court have jurisdiction in the present case?
Is there any infringement of the trademark or passing off?
Is the plaintiff entitled to get a permanent injunction?

It was held that the Court had jurisdiction to decide the case if a threat of infringement exists. It was pointed out that an intention to use the trademark besides direct or indirect use of the trademark was sufficient to give jurisdiction to the court to decide on the issue. [20]

The court held that it is a well-settled position of law that exporting products from a country is to be considered as a sale within the country wherefrom the goods are exported and it amounts to infringement of the trademark.

The Court granted an interim injunction against the defendant from using the mark in India as well as in the export market to prevent the plaintiff from irreparable loss and injury and quashed the appeal by the defendant. [21]

5. D.C. Comics v. Towle [22]

This very interesting case is a recent landmark judgment in the field of copyright law.

Facts of the Case

DC Comics (DC) is the publisher and copyright owner of comic books featuring the story of the world-famous character, Batman. Originally introduced in the Batman comic books in 1941, the Batmobile is a fictional, high-tech automobile that Batman employs as his primary mode of transportation. The Batmobile has varied in appearance over the years, but its name and key characteristics as Batman’s personal crime-fighting vehicle have remained consistent.

Since its creation in the comic books, the Batmobile has also been depicted in numerous television programs and motion pictures. Two of these depictions are relevant to this case: the 1966 television series Batman, starring Adam West, and the 1989 motion picture Batman, starring Michael Keaton.

Defendant Mark Towle produces replicas of the Batmobile as it appeared in both the 1966 television show and 1989 motion picture as part of his business at Gotham Garage, where he manufactures and sells replicas of automobiles featured in motion pictures or television programs for approximately “avid car collectors” who “know the entire history of the Batmobile .” Towle also sells kits that allow customers to modify their cars to look like the Batmobile , as it appeared in the 1966 television show and the 1989 motion picture.

DC filed this action against Towle, alleging, among other things, causes of action for copyright infringement, trademark infringement, and unfair competition arising from Towle’s manufacture and sale of the Batmobile replicas. The district court passed a summary judgment in favour of DC.

Summary of Judgment

The main question for consideration is whether BATMOBILE is entitled to copyright protection. The Court of Appeal relied on a number of historical decisions in deciding this case. The court held that copyright protection extends not only to the original work as a whole but also to “sufficiently distinctive” elements, like comic book characters, contained within the work. [23]

Although comic book characters are not listed in the Copyright Act, courts have long held that, as distinguished from purely “literary” characters, comic book characters, which have “physical as well as conceptual qualities”, are copyrightable. [24] The court relied on the judgment in Hachiki’s case [25] where it was held that automotive character can be copyrightable. Moreover, it has been held that copyright protection can apply for a character even if the character’s appearance changes over time. [26]

The U.S. Court of Appeals for the Ninth Circuit, in this case, developed a three-part test for determining protection of a character appearing in comic books, television programs or films under the 1976 Copyright Act, independent of any specific work in which it has appeared and irrespective of whether it “lacks sentient attributes and does not speak” as explained above. [27]

The court held that the present case satisfied the three-part test DC had the right to bring suit because it had reserved all merchandising rights when it granted licenses for the creation of the 1966 Batman television series and the 1989 Batman film.

It was held that the 1966 program and 1989 film were derivative works of the original Batman comics and that any infringement of those derivative works also gave rise to a claim for DC, the copyright owner of the underlying works.

It was found that Towle’s replicas infringed upon DC’s rights hence the Court also upheld the District Court’s refusal to allow Towle to assert a laches defense on DC’s trademark claims because the infringement was found to be willful. [28]

The law relating to intellectual property is constantly evolving all around the world. Being a relatively new concept, there are many areas which still need development and protection of the laws. All the above-mentioned case laws have a wide impact on society. They have brought about major breakthroughs in IP law.

Originally Published: May 26, 2019

[1] AIR 2014 Bom 178

[2] www.manupatra.com

[3] LANDMARK JUDGEMENTS IN PATENT LAW, Available at http://www.talwaradvocates.com/landmark-judgements-patent-law/

[4] BAYER CORP. V. UNION OF INDIA, Available at http://www.indialaw.in/blog/blog/intellectual-property-rights/bayer-corp-v-union-of-india/

[5] 447 U.S. 303, 100 S. Ct. 2204 (1980)

[6] DIAMOND v. CHAKRABARTY (1980), Available at https://caselaw.findlaw.com/us-supreme-court/447/303.html

[7] 437 U.S. 584 (1978)

[8] Diamond v. Chakrabarty, Available at https://www.quimbee.com/cases/diamond-v-chakrabarty

[9] Hartranft v. Wiegmann, 121 U.S. 609, 615

[10] https://www.lexisnexis.com/lawschool/resources/p/casebrief-diamond-v-chakrabarty.aspx

[11] 1999(19) PTC 201 (Del)

[12] Anti-cybersquatting Consumer Protection Act (15 U.S.C. 1125(d))

[13] Hereinafter referred to as the ‘Act’.

[14] MANU/DE/0120/1999

[15] 1996 PTC 142

[16] 42 USPQ 2d 1850

[17] Jesus Vs. Brodsky, 46 USPQ 2d 1652

[18] MANU/DE/2698/2009

[19] www.lexquest.com

[20] Case analysis: Coca-Cola Co. Vs. Bisleri International Pvt. Ltd, Available at https://brandsandfakes.com/case-analysis-coca-cola-co-vs-bisleri-international-pvt-ltd/135/

[21] LANDMARK JUDGEMENTS IN TRADEMARKS LAW, Available at http://www.talwaradvocates.com/5-landmark-judgements-trademarks-law/

[22] MANU/FENT/2518/2015

[23] Halicki Films, LLC v. Sanderson Sales & Mktg, 547 F.3d 1213, 1224 (9th Cir. 2008)

[24] Walt Disney Productions v. Air Pirates, 581 F.2d 751 (9th Cir. 1978).

[25] Halicki Films, LLC v Sanderson Sales & Marketing, 547 F.3d 1213 (9th Cir. 2008).

[26] Toho Co., Ltd. v. William Morrow & Co., Inc., 33 F.Supp.2d 1206 (C.D. Cal. 1998)

[27] http://www.frosszelnick.com/dc-comics-v-towle

Five Landmark Decisions in Indian Tort Law – by Tanishka Goswami (Opens in a new browser tab)
Intellectual Property Rights

Fathima Mehendi

5th Year law student at National University of Advanced Legal Studies (NUALS), Kochi

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Among the major world economies, India is one of the most challenging with respect to the protection and enforcement of intellectual property (IP) rights. Despite some recent efforts and the Indian government’s many positive statements and initiatives, concrete developments have been few, and the pace of reform has not matched repeated high-level calls to foster innovation and promote creativity. India has yet to take meaningful steps to address longstanding IP issues faced by innovation-driven industries. In 2023, India remains on the Priority Watch List in USTR’s Special 301 report.

Developments Over the Last Five Years

India announced its first National IPR policy in 2016. Today, the portfolios of Patents, Designs, Trademarks, Copyright, Geographical Indications, and Semiconductor Integrated Circuits Layout Design all fall under the Department for Promotion of Industry and Internal Trade (DPIIT). Under DPIIT, the Cell for IPR Promotion and Management is tasked with implementing India’s National IPR Policy. It spearheads the Indian government’s efforts to streamline IP processes, increase IP awareness, promote commercialization, and enhance enforcement.

Over the past five years, the Indian government has taken positive steps to strengthen its IPR regime, such as efforts to modernize its IP offices; increase manpower; use IT and technology in e-filing of applications; deliver certificates of grant and registration of patents, trademarks and designs in a digital format; reduce the number of trademarks forms; use video conferencing for hearing of IP applications; create expedited examination procedures; and spread awareness on IP issues.

DPIIT, in association with the Federation of Indian Chambers of Commerce and Industry, launched an IPR enforcement toolkit to aid police with handling IP crimes, in particular counterfeiting and piracy. The Maharashtra IP Crime Unit (MIPCU), formerly Maharashtra Cyber Digital Crime Unit (MCDCU), was established in August 2017, as a public-private partnership to enable industry to work directly with state police to combat theft of IP on digital platforms particularly digital piracy. The Unit serves as a potential model for digital enforcement that other Indian states can emulate and replicate.

The Ministry of Education’s Innovation Cell has also taken steps to foster innovation and promote IP literacy and awareness in classrooms across the country.

U.S. Government Engagement

Engagement with India on IPR continues, primarily through the U.S.-India Trade Policy Forum’s Working Group on Intellectual Property, which restarted in June 2021 after a gap of nearly three years. Under the Forum, working-level engagements between the United States and India have also been positive and focus on helping India develop a more transparent, predictable, and reliable enforcement environment. Further, the United States and India continue to actively engage across various platforms, such as the U.S.-India IP Dialogue, and routinely through bilateral interactions on specific IP issues. In addition, the United States maintains positive working relationships with Indian customs, police, and judiciary officials, as well as with industry representatives to discuss ways to strengthen India’s important enforcement ecosystem.

To further bilateral engagement on intellectual property matters, in December 2020, the United States Patent and Trademark Office and DPIIT signed a Memorandum of Understanding relating to IP technical cooperation mechanisms and the promotion of IP, which is guided by a biennial work plan.

Legislative Climate

While India has laws covering almost all types of intellectual property rights and enforcement procedures, the legislative process is often lengthy and uncertain, and the same issues can remain pending for many years. This can create uncertainty for industries and complicate their strategic IP enforcement decisions.

The Commercial Courts Act, enacted in 2015 and amended in 2018, was established to help reduce delays and increase expertise in judicial IP matters. However, to date only a limited number of courts have benefited under the Act. Rights holders report jurisdictional challenges have reduced the effectiveness of the commercial courts, and inadequate resources for staffing and training continue.

Pharmaceutical and agrochemical products can be patented in India. Plant varieties are protected by the Protection of Plant Varieties and Farmers’ Rights Act, 2001. However, Indian law does not protect against unfair commercial use, nor against the unauthorized disclosure of undisclosed test or other data submitted to the Indian government during the application for market approval of pharmaceutical or agrochemical products.

The Designs Act, 2000 allows for the registration of industrial designs. The current Designs Rules detail classification of designs, largely to conform to international standards, and are intended to address the proliferation of design-related activities. India’s Semiconductor Integrated Circuits Layout Design Act, 2000 is based on standards developed by the World Intellectual Property Organization; however, the law remains inactive due to a lack of implementing procedures as well as lack of interest in filings.

A June 2018 amendment to the Intellectual Property Rights (Imported Goods) Enforcement Rules, 2007, removed patents from the scope of customs protection. Accordingly, the new customs recordation system permits owners of trademarks, designs, copyrights, and geographical indications to record their IPR with Indian customs authorities and seek enforcement actions for any related counterfeit activity. Customs officers have ex-officio authority to suspend the clearance of suspect imported goods when they believe that such goods are counterfeits. They subject these goods to examination, seizure, and destruction when rights holders join the proceedings, though rights holders will have to bear these costs. Also, the goods may subsequently be released after suspension of clearance if rights holders do not comply with the customs record requirements.

Protection and enforcement of trade secrets is challenging as there are no civil or criminal laws in India that specifically address their protection. While India relies on contract law to provide some trade secret protection, this approach is effective only in situations in which a trade secret owner and a party accused of misappropriation have a contractual relationship. Criminal penalties are not expressly available for trade secret misappropriation in India and civil remedies are reportedly difficult to obtain and often do not have a deterring effect.

India does not provide data protection for the registration of new agricultural products. Despite previous attempts to introduce data protection provisions into the Pesticides Management Bill, the pending bill, introduced in 2020, does not provide for data protection for the registration of new pesticides. Foreign industries were surprised by the December 2021 Standing Committee on Agriculture, Animal Husbandry and Food Processing Report on the Pesticide Management Bill, 2020, which noted that not including data protection provisions in the Bill will benefit domestic industry and farmers.

In a positive step to curb the menace of film piracy, including by transmission of unauthorized copies on the internet, GoI amended the Cinematograph Act, 1952 via the Cinematograph (Amendment) Act, 2023, which contains strict penal provisions to prohibit unauthorized recording and exhibition of films. Unfortunately, the Act also created new concerns for right holders by applying a broad set of exceptions to infringement from the Copyright Act to film recording or exhibition activities.

In June 2021, India’s Department Related Parliamentary Standing Committee on Commerce presented its 161st Review of the Intellectual Property Rights Regime in India Report. The Report emphasizes that the IPR regime should comply with international agreements, rules, and norms, and be compatible with those of other nations and foreign entities. While many of the recommendations in the report, such as those relating to trade secrets protection, IP enforcement, and dedicated IP benches at the High Courts, are welcomed, some recommendations, such as those relating to compulsory licenses and statutory licensing under Copyright law for online broadcasting, raise serious concerns and are regarded as problematic for IP rights holders.

In July 2022, the Ministry of Health and Family Welfare released a draft Drugs, Medical Devices and Cosmetics Bill, 2022 for public consultation. The Bill seeks to amend and consolidate the laws relating to the import, manufacture, distribution and sale of drugs, medical devices, and cosmetics to ensure their quality, safety, efficacy, performance and clinical trial of new drugs and clinical investigation of investigational medical devices. A 2023 revision of the Bill has yet to be approved by the Cabinet.

In August 2022, the Economic Advisory Council to the Prime Minister (EAC-PM) released a Report titled “Why India Needs to Urgently Invest in its Patent Ecosystem.” The Report stressed the urgent need to ramp up the manpower of the Indian IP Office, especially for Patent Office to help boost its operations. In addition, the Report recommended that the IP Office have more autonomy for financial and staffing flexibility to help enable it to catch up with its global peers. The Report also flagged procedural issues in the patent application and trademark registration processes creating extensive delays in the grant of IP rights to the innovators in the country. In a positive step, the Indian IP Office has been taking steps in line with many of the report’s recommendations.

In August 2023, the Digital Personal Data Protection Act, 2023 received the assent of the President of India. Its enforcement will be determined by the GoI through notification. It excludes non-personal data or anonymized personal data which was a key demand from various stakeholders. The 2023 Act refers to IP primarily within the concept of “certain legitimate uses.” Processing of the personal data of a data principal for the purposes of employment or those related to safeguarding the employer from loss or liability, such as prevention of corporate espionage, maintenance of confidentiality of trade secrets, IP etc. is one of the nine grounds the 2023 Act provides for where use of the personal data would be a considered legitimate use. This may enable technology and IP-focused entities to better shield disclosure of sensitive information, which is a positive step. However, in the absence of any context in the Act, it is not clear how such provisions will be implemented.

In August 2023, the Biological Diversity (Amendment) Act, 2023 received the assent of the President of India. Its enforcement will be determined by the GoI through notification. It would introduce extensive changes to the Biological Diversity Act, 2002. It would amend the definitions of non-Indian entities and biological resources, require National Biodiversity Authority pre-approval for IPR applications for foreign entities and Indian entities before grant of such IPR and at the time of commercialization respectively, add restrictions on IPR application activities on biological resources when normally traded as commodities, and decriminalize cognizable and non-bailable offences. Overall, the compliance requirements for foreign entities seeking protections in India under the Act would remain strict.

In August 2023, the Jan Vishwas (Amendment of Provisions) Act, 2023 received the assent of the President of India. Its enforcement will be determined by the GoI through notification. It would amend 42 Acts for decriminalizing and rationalizing offences to further enhance trust-based governance for ease of living and doing business. Patents Act, 1970, Trade Marks Act, 1999, Copyright Act, 1957, and Geographical Indications of Goods (Registration and Protection) Act, 1999 would also be amended. Under the Jan Vishwas Act, several offences with an imprisonment term in certain Acts would be decriminalized by imposing only a monetary penalty. One of the positive amendments it would introduce would be to substantially reduce the penalty for failure or refusal to file Form 27 under the Patents Act and to do away with the provision for imprisonment.

Regulatory Climate and Hurdles

Despite several positive developments, there are also many regulatory hurdles and challenges that affect the commercialization of IP in India. For instance, the interpretation and application of patent law can be unpredictable and inconsistent, particularly in important areas such as determining the scope of patentable subject matter, pre-grant opposition proceedings, and provisions governing the granting of compulsory licenses.

In 2016 and 2017, the Patents Rules and the Trade Marks Rules were revised, adopting strict timelines to dispose of cases, streamline examinations, and reduce certain filing fees to incentivize start-up activity. In 2019, the Patents (Amendment) Rules further expanded the categories of applicants eligible for expedited examination of their patent applications. The 2017 examination guidelines for Computer Related Inventions removed all examples of what can and cannot be patentable, deferring to the patent examiner’s discretion and raising concerns about the consistency of patentability decisions. In September 2021, the Indian government notified the Patents (Amendment) Rules, 2021, extending the benefit of fee reduction for patent application filings to all recognized educational institutions, including foreign institutions. In a positive step in August 2023, the GoI published the Draft Patents (Amendment) Rules, 2023 for public input. The key proposed amendments in the Draft Rules aim to streamline and expedite patent procedures, including those relating to pre-grant opposition, statement and undertaking regarding foreign patent applications, and annual patent commercial working statement (Form 27).

India’s Copyright (Amendment) Rules, 2021, became effective in March 2021. These rules introduced a host of changes regarding copyright societies, including their registration, management, and functions.

The Delhi High Court’s direction to the Office of the Controller General of Patents, Designs, and Trade Marks (CGPDTM) i.e., IP Office to resolve trademark opposition backlog and continuous monitoring has been a positive step though concerns remain with the excessive delays in trademark opposition proceedings.

Pharmaceutical and Medical Devices

The lack of coordination between DPIIT and the Central Drugs Standard Control Organization through either patent linkages or an effective notification system invites abusive infringing activities, which compromises the ability of innovative industries to effectively commercialize and enforce their IPR in India. Liberal price controls, coupled with the potential abusive use of procedures such as pre-grant and post-grant opposition proceedings, further complicate an effective IPR regime for the pharmaceutical and medical device industries.

In April 2017, the Ministry of Health and Family Welfare removed the requirement for companies to inform whether a new drug is under patent at the time of filing for a manufacturing license. This is viewed as a regressive step and goes against India’s National IPR Policy, which calls for better central and state coordination on IP issues. India still lacks a system for notifying interested parties of marketing approvals for follow-on pharmaceuticals, which would allow for the early resolution of potential patent disputes.

The threat of price controls for patented pharmaceuticals continues to concern rightsholders. The National Pharmaceutical Pricing Authority previously made efforts to invoke emergency provisions to issue price control orders to fix prices for several non-scheduled drugs, including patented drugs. The 2015 National List of Essential Medicines included several patented drugs. The List is currently under revision again, and the threat of patented drugs being added to the list remains a significant concern. There are also strong concerns over the unpredictable and opaque application and implementation of the Trade Margin Rationalization formula for price monitoring of the non-scheduled market, including for patented drugs. In January 2019, the Department of Pharmaceuticals amended its 2013 Drugs (Prices Control) Order to exempt manufacturers producing a new drug patented in India from price controls for five years from commencement of their commercial marketing of the drug in India. While this is viewed as a positive development, serious concerns remain over its implementation or potential dilution. Industry continues to seek clarity from the Department of Pharmaceuticals on how the amendment is to be implemented.

In the pharmaceutical sector, the absence of clear guidance in implementing Section 3(d) of the Indian Patents Act has restricted patent-eligible subject matter in a way that fails to incentivize innovation by hindering the development of improvements to benefit Indian patients.

In December 2020, the Department of Pharmaceuticals issued guidelines for implementation of the provisions of the 2017 Public Procurement Order, specifying a minimum of 80 percent local component requirement for a Class I local supplier and 50 percent to qualify as a Class II local supplier. The guidelines effectively disqualify non-local bidders from Indian government tenders.

Technology, Brand, and Intellectual Property Licensing

In 2018, the Indian government formed an inter-ministerial group to investigate reinstating royalty caps for all technology collaborations and brand licensing, limiting the amount of foreign exchange that can leave the country. If implemented, such caps would negatively affect all sectors of the economy in which a company licenses its brand name or enters a technical collaboration. Prior to 2009, India had a similar provision, but it was abandoned in favor of attracting higher levels of foreign investment.

India generally has adequate copyright laws, barring some exceptions. A July 2021 Parliamentary Committee report recommended an amendment to the Copyright Act to extend statutory licensing to include internet and digital broadcasters for certain works. DPIIT has taken this recommendation into consideration, which has deeply concerned companies in the music, entertainment, and creative industries. Amending the Copyright Act to permit statutory licensing for interactive transmissions would be inconsistent with India’s obligations under relevant international treaties and would have severe implications for rights holders that make their content available online. The lack of predictability around this issue, along with the expansive granting of licenses under Chapter VI of the Indian Copyright Act and overly broad exceptions for certain uses, have raised concerns about the strength of copyright protection in India and complicated the functioning of the market for music licensing. India’s commitment at the United States–India Trade Policy Forum in November 2021 to comply with the World Intellectual Property Organization Internet Treaties was a positive step, though respective amendments to bring India’s Copyright Act into alignment with international best practices has not yet been made.

The Indian Patents Rules require Form 27 to be filed annually by patentees and licensees on the details of their commercial activities for all their patents in force in India. While the annual requirement was initially created to ensure that patentees are working their inventions in India, the form may be hindering innovation. In October 2020, revisions to Form 27 improved the situation, though it still places significant risks and undue burden on rights holders and may compromise their confidential business information and strategies. In addition, failing to comply with Form 27 requirements can create grounds for seeking a compulsory license and could lead to loss of patent, substantial penalties, and imprisonment.

Enforcement Climate

The Intellectual Property Appellate Board (IPAB) was abolished in 2021, transferring jurisdiction to adjudicate appeals over patents, trademarks, copyrights, and other IPR matters to the High Courts. India’s decision to abolish the IPAB and redirect matters to the courts has created uncertainty around adjudication of IP cases and the setting of copyright royalty rates. In July 2021, the Delhi High Court created a dedicated Intellectual Property Division (IPD) to hear IPR matters, including those previously before the IPAB. The Delhi High Court recently nominated three Judges to exclusively function as the IPD, and in February 2022 the Court notified its comprehensive rules for the IPD. At the same time, the Court notified its rules governing patent suits. The April 2022 Parliamentary Committee Report recommended that the Indian government encourage High Courts across the country to follow suit and establish their own IPDs.

In 2021, India continued to take steps against websites with pirated content. Despite positive steps taken in online copyright enforcements, such as “dynamic injunctions” for repeat offenders, copyright holders continue to report high levels of piracy, particularly online and through commercial broadcasts. This includes unauthorized file sharing of videogames, signal theft by cable operators, commercial scale photocopying, unauthorized reprints of academic books, and circumvention of Technology Protection Measures.

While there has been some progress, weak enforcement of IP by the courts and police, a lack of familiarity with investigative techniques, and the absence of a centralized IP enforcement agency, combined with failure to coordinate actions on both the national and state level, threaten to undercut progress.

See the India IPR Snapshot for more information.

In any foreign market, U.S. companies should consider several general principles for effective protection of their IP. Please see Protecting Intellectual Property and visit Stopfakes.gov for additional resources.

See the 2023 Investment Climate Statement , which includes information on the protection and enforcement of IPR in India.

For more information, contact U.S. Intellectual Property Counselor for South Asia John Cabeca at the U.S. Embassy in New Delhi or the International Trade Administration’s Office of Intellectual Property Rights Director Stevan Mitchell .

Celebrating 20 Years of IP Excellence

Latest indian copyright cases – 2021 – part 1, 1. sony pictures network india pvt. ltd. vs. www.sportsala.tv and ors., high court of delhi, cs(comm) 289/2021.

In this case, Sony Pictures filed a suit against numerous defendants primarily praying for a permanent injunction against reproducing, making available, distributing, broadcasting, and so on of the cricket matches between India’s tours of England and Sri Lanka. During the pendency of the suit, Sony Pictures prayed for an interim injunction asking for more or less similar reliefs. The Court granted an injunction in favour of Sony Pictures against websites including their redirects, mirrors and alpha-numeric versions. A dynamic injunction was also granted against rogue websites, which may reproduce, broadcast, make available, communicate to public or distribute the cricket matches. The Court also passed an order asking ISPs to block the mentioned and other rogue websites, and asked Government of India to give appropriate directions to prevent infringement of copyrights of Sony Pictures in the matches. The interim injunction also covered MSOs and cable operators, and local commissioners were appointed to monitor and act against violations of the Court’s orders. The Court’s orders primarily cover the copyrights held by Sony Pictures, and by implication permits non-infringing uses and fair uses of the content pertaining to the cricket matches between India and England/Sri Lanka. A copy of the order may be accessed here .

2. Krishna Kishore Singh vs. Sarla A. Saraogi & Ors., High Court of Delhi, CS(COMM) 187/2021

In this case, the Delhi High Court refused to grant an interim injunction against publication and release of films purportedly related to Sushant Singh Rajput (SSR) as the plaintiff, SSR’s father failed to make out a prima facie case, and because irreparable harm and balance of convenience were in favour of the defendants. The plaintiff in the case argued that films and series such as ‘NYAY The Justice,’ ‘Suicide or Murder,’ and ‘Shashank,’ must be injuncted and restrained from being released, published and communicated to the public. The plaintiff filed the case on several grounds including violation of publicity rights and privacy rights, right to fair trial, defamation, and violation of Article 21 of the Constitution. After reviewing the facts and relevant cases, the Court came to the conclusion that the plaintiff failed to make out a valid case for violation of celebrity or publicity rights of SSR or his family members because the plaintiff was not aware of the content of the films, the defendants were not using SSR’s image, likeness or name, and because the films had appropriate disclaimers. It also pointed out that celebrity rights may not subsist after the death of the celebrity, and that facts that form part of the public record may be used by the defendants without liability. About defamation, the Court stated that a case of defamation is merely speculative without access to the defamatory content. The Court also pointed out that no violation of the right to fair trial may be contemplated because of publication in news or by way of films. It went on to note that freedom of expression prevails over Article 21 for information that forms part of the public record. While denying the injunction, it asked the defendants to render accounts as any damage may be compensated by way of damages. A copy of the order may be accesses here .

3. Dassault System Solidworks Corporation & Anr. vs. Spartan Engineering Industries Pvt. Ltd. Anr., High Court of Delhi, CS(COMM) 34/2021

In this case, the Delhi High Court has dealt with the issue of copyright infringement of software. Plaintiff no.1 is a French company which has developed a software called ‘Solidworks’. This software facilitates modelling and development of products in a three-dimensional environment. Plaintiff no.2 is a sister concern established by Plaintiff no.1 to manage all its affairs with respect to ‘Solidworks’ in India. Plaintiff no.1 and Plaintiff no.2 (“Plaintiffs”), state that the software was developed by their employees as work for hire, and hence the copyright therein belongs to the Plaintiffs. The Plaintiffs claim that the software program and its instruction manuals are literary work under the Copyright Act, 1957 (Act) and is entitled to copyright protection. The software was first published in the United States of America (US) and is entitled to protection in India under Section 40 of the Copyright Act as India and the US are members of the Berne Convention, Universal Copyright Convention and the World Trade Organisation’s TRIPS Agreement. The Plaintiffs allege that in May 2018, the Plaintiffs received information regarding the commercial use of pirated and unauthorised versions of the ‘Solidworks’ software program by the Defendants, without paying the required license fee. The Plaintiffs further asserted that such unauthorized use of the software had increased since August, 2020 and all efforts to reach an amicable resolution were futile, as the Defendants were denying infringement. Following this, the Plaintiffs approached the Court seeking an injunction, as use of any pirated or unauthorised copy of the Plaintiffs’ software program would amount to copyright infringement under Section 51 of the Copyright Act. The Plaintiffs also relied on Section 63B of the Act, which makes it a criminal offence to knowingly use a pirated computer program. Further, the Plaintiffs asserted that, there has also been a contractual infringement and intellectual property infringement, due to the violation of the End User License Agreement by the Defendants. While issuing the order, the court remarked that, “Software infringement is a serious issue, and deserves to be nipped in the bud”. The Court granted the Plaintiffs an ad interim ex-parte injunction, restraining the Defendants from using, reproducing and distributing any pirated or unlicensed or unauthorized software programs owned by the Plaintiffs and also from formatting their computer systems and/or erasing any data, pertaining to assisting others to infringe the Plaintiffs’ copyright. A copy of the order may accessed be here . Read Latest Copyright Cases in 2021 – Part 2 here

Authored and compiled by: Neharika Vhatkar (Associate, BananaIP Counsels) Case Briefs contributed by: Ashna Shah (Legal Intern): Case 3 Updates on recent orders and judgments are brought to you jointly by the Entertainment Law and Consulting/Strategy Divisions of BananaIP Counsels, a Top IP Firm in India. If you have any questions, or need any clarifications, please write to [email protected] with the subject: Copyright Judgments Disclaimer: Please note that these case updates have been put together from different sources, primary and secondary, and BananaIP’s reporters may not have verified all the decisions published in the bulletin. You may write to [email protected] for corrections and take down.

India’s Top 10 IP Judgments/Orders of 2020 [Topicality/Impact]

1. Allani Ferid v. Assistant Controller of Patents & Designs (IPAB)

In a very important development, the IPAB granted a software patent on a ‘ method and device for accessing information sources and services on the web ’ to Tunisian citizen Ferid Allani, 19 years after the original application! After multiple rounds at the Patent Office, Justice Pratibha Singh of the Delhi High Court had issued an order in 2019 directing the Patent Office to re-examine the application in the context of developments that have occurred since the filing of the patent in 1999. This refers to the addition of the phrase “ per se ” in section 3(k) of the Patents Act, which earlier barred computer programmes from being patented. This court had observed that this was done to ensure that genuine inventions that are developed based on computer programmes (as opposed to being only computer programmes) are not rejected. Thus, if the invention demonstrates a ‘technical effect’ or a ‘technical contribution’ it would be patentable even though it may be based on a computer program. The grant of this patent has opened the field for patent applications related to artificial intelligence, blockchain technologies and other digital products which may computer programme-based.

2. Astrazeneca v. Intas Pharma Ltd. & Alkem Labs Ltd. & Astrazeneca AB & Anr. v. Emcure Pharma Ltd. & MSN Labs Ltd. (Delhi High Court)

Early in the year, the Delhi High Court ruled against generic manufacturers of cardiovascular diseases drug Ticagrelor by holding that even though the drug was covered by a previous genus patent, since it is produced and marketed under a species patent, the patentee is entitled to enforce the later species patent. This decision was controversially in contradiction with the previous rulings of the court as well as decisions rendered later in the year which have held that coverage and disclosure cannot be separate.

In November 2020, the Delhi High Court refused to grant an interim injunction for the manufacture of generic medicines whose subject matter was argued to be disclosed by a species patent, whereas they had already been covered in an expired genus patent. In this well-reasoned judgment, the court reiterated that there cannot be any dichotomy between disclosure and coverage. It also noted that owing to the COVID-19 pandemic, patients already suffering from diabetes are at a greater risk of contracting coronavirus and thus, affordable diabetes medication was in public interest. The court also clarified that disclosure requirements had to be strictly followed by patent applicants.

4. Interdigital Tech Corp & Ors. v. Xiaomi Corp & Ors. (Delhi High Court)

In a significant development, the Delhi High Court rejected InterDigital’s proposal for constituting a two-tier confidentiality club for sharing confidential documents to assess whether the licensing terms being offered by InterDigital were on FRAND basis. This proposal sought to exclude any representatives of parties, “other than “non-in-house” advocates and the experts appointed by them”, from accessing documents like “confidential, comparable patent license agreements on FRAND terms, as executed by the parties in the suit”. The court held such a proposal to be against fair play to the defendants and against the lawyer-client relationship.

5. Prof. Dr. Cluadio De Simone & Anr. v. Actial Farmaceutica SRL. & Ors. (Delhi High Court)

In another significant development, the Delhi High Court provided clarity on the interplay between two different IP protections by observing that the same innovation cannot enjoy both trade secret and patent protection. The court rejected the Plaintiffs’ contention that the aspects of the innovation that they sought to protect as trade secrets were separate from the aspects that formed subject matter of their patent. It held that once a patent has been applied for and expired, the ‘innovation’ is in the public domain and no trade secret protection can be claimed thereon.

6. Monsanto Holdings Pvt. Ltd. & Ors. v. Competition Commission of India (Delhi High Court)

The Delhi High Court ruled on the issue of overlap of jurisdiction under the Patents Act and the Competition Act in case of patent licensing terms that may be anti-competitive. It rejected the argument that the specialized regulator, i.e., the Patent Controller would be the one to first determine whether the agreements were an abuse of rights under the Patents Act before the CCI could look into it. The Controller did not have the power to act upon the exercise of patent rights or the agreements that are entered into by patentees with third parties in relation with these rights. Moreover, patents are not an industry in themselves and the grant of a patent merely recognizes an IP right. Thus, Section 3(5) of the Competition Act does not enable an IP right holder to include onerous conditions.

7. Arudra Engineers Pvt. Ltd. v. Pathanjali Ayurved Ltd. & Anr. (Madras High Court)

In an important judgment, the Madras High Court held that Patanjali’s use of the word ‘Coronil’ in its immunity booster tablets caused confusion regarding the possibility of curing coronavirus and played on the prevailing panic and fear among people to make money. Significantly, it ruled that this use infringed upon the Plaintiff’s registered trademark rights on ‘CORONIL’ under Section 29(4) of Trade Marks Act and interpreted the term ‘reputation in India’ under this section, literally. It stated that the Plaintiff simply needed to show that the trademark enjoys a reputation within the country and not meet the standard of fame held by a well-known mark. This interpretation of Section 29(4) allows for marks of significant repute in the domestic market to seek injunctions across classes without being subject to the onerous requirements of being declared a well-known mark under Section 2(zg). They are required to be known only amongst the relevant class of consumers as opposed to the general public.

8. Interdigital Tech Corp & Ors. v. Xiaomi Corp & Ors. (Delhi High Court)

The Delhi High Court (DHC) granted an anti anti-suit injunction in the patent infringement dispute between InterDigital and Xiaomi. The court viewed the lis as not impacting the proceedings before the Wuhan Court concerning fixation of FRAND rates. The court noted Xiaomi’s argument to be predicated on comity of courts and held public policy concerns to trump the comity principle, considering the Wuhan judgment to be a direct impediment to its ability to decide the matter before it. The order was criticised for failing to consider the greater number of InterDigital’s patents in China than India, investigations against InterDigital’s policies in China in 2013, and strategic litigation against defendants in SEP disputes. Rajiv argued that the DHC ignored the public interest aspect that lies at core of a patent infringement suit.

9. Shamoil Ahmad Khan v. Falguni Shah & Ors . (Bombay High Court)

The Bombay High Court held that copyright protection subsists in the theme, plot and story line constituting the essence of a literary work. The plaintiff wrote a story titled ‘Singardaan’ in Urdu and alleged that the defendants’ web series under the identical title, ‘Singardaan’ launched on the App ‘Ullu’ and available on YouTube copied his story’s plot, narrative, characters and title. The Court held that the web series contained all the essential parts of the story. It came to this conclusion noting that it would have been obvious to anyone who had read the story that the web series was only an adaptation of it. The interim order was criticised for its reasoning that the differences drawn up by the defendant between their web series and the plaintiff’s story were not crucial because they constituted ‘mere embellishments’ whereas the story line of the plaintiff was the ‘life and blood’ of the web series. This is because the ‘life and blood’ of the web series is irrelevant to a finding of substantial similarity and copyright infringement. Even if the web series had used the story as an ancillary trivial part of a larger plot whose ‘life and blood’ was something else, if the Court has concluded that the story used was a substantial part of the plaintiff’s copyrightable expression (as it had in this case), it would still result in a finding of infringement. The good thing about this order, though, was the Court’s candid acknowledgement of the difficulty in the ‘delicate task’ of applying the idea-expression dichotomy in practice, ultimately based on a value judgment of the right degree of abstraction.

10. Amazon Seller Services Pvt. Ltd. & Ors. v. Amway India Enterprises Pvt. Ltd. & Ors. (Delhi High Court)

The decision of the Division Bench of the Delhi High Court set aside the Single Judge’s order which had restrained various e-commerce platforms (including Amazon, Flipkart and Snapdeal) from enabling sale of products of ‘direct selling’ companies without their consent. The case concerned the applicability of the 2016 Direct Selling Guidelines (DSGs), Section 79 of the Information Technology Act, and contentions regarding inducement of breach of contract and tortious interference. The Court held that the DSGs are not law, and are only advisory in nature. Further, it noted that the mere fact that the online platforms may have knowledge of the Code of Ethics of the DSEs and the contractual stipulations imposed by such Direct Selling Entitiess, is insufficient to lay a claim of tortious interference.

11. Madras Bar Association v. Union of India & Anr. (Supreme Court)

Adding to an existing trail of decisions on administration of tribunals, the Supreme Court passed a detailed judgement in November, 2020, wherein it upheld the constitutional validity of the Tribunal, Appellate Tribunal and other Authorities (Qualifications, Experience and other Conditions of Service of Members) Rules, 2020 (or Tribunal Rules 2020). Among other things, the decision is crucial for its observation on appointment of the Chairpersons, Vice-Chairperson and Technical Members to different judicial tribunals.

Please click here to view our list of India’s top 10 judgments/orders (jurisprudence/legal lucidity), here for the list of India ‘s top 10 IP l egislative and policy developments of 2020 and here for the list of India’s top 10 other IP developments.

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please describe the impact on consumers in these IP litigations.

Seems like a one-sided commentary. From the decision, one understands the fine was imposed pursuant to Section 119 of the…

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Case Analysis

10 Landmark Cases on Intellectual Property Rights

Introduction

Sir John Salmond has defined ‘Right’ as an interest recognized and protected by a rule of justice. It is an interest in respect of which there is a duty and the disregard of which is ‘Wrong’. 1

He further has explained that a ‘Legal right’ is an interest recognized and protected by rule of law and violation of which would be a ‘Legal Wrong’.

Now coming to Intellectual property rights; these are those ‘Legally Protected Exclusive Rights’ awarded to the creators for their intellectual creations. When these rights are violated then cases are filed to get legal remedy. In this article, have tried to gather 10 landmark judgments where intellectual property rights were infringed.

Types of Intellectual Property

Before diving any deeper we first need to know what does intellectual property means and what its types are. The World Intellectual Property Organization (U.N.) defines ‘Intellectual Property as the Creation of the mind, such as inventions; literary and artistic works; designs; and symbols, names, and images used in commerce. 2

The above definition gives an overall idea that intellectual properties are more than one and have different rights associated with them. Generally, there are 7 kinds of Intellectual property rights. They are patents, Copyright, Trademarks, Industrial Designs, Geographical Indications, Plant Varieties, and Semiconductor Integrated Circuits. For example, patents are issued for inventions while copyrights are given for literary and artistic works.

Landmark Cases on Intellectual Property Rights

Below is a list of landmark judgments on Intellectual property rights passed by the courts in India.

Bajaj Auto Ltd. v.TVS Motors Comp. Ltd. (2010) Madras HC 3

This case relates to a controversy that had arisen over the unauthorized use of patented DTS-i technology. In this case, the plaintiff Bajaj Auto prayed for issuing a permanent injunction for stopping the defendant’s TVS Motors from using its patented technology in any form and had also sought damages from them. The issue here was related to using of twin spark plug technology inside the internal combustion engine by the defendant.

In this case doctrine of pith and marrow also known as the doctrine of equivalents was applied. The doctrine applies to situations where despite there is no apparent literal infringement been committed still, an infringement occurs due to the product or process infringing the patent has a structure or performs a function that is very similar and analogous to an element already been claimed in the patented invention and thereby performs same things in the same way as the patented element and achieves the same results.

A purposive construction was given to understand if the ‘novel feature’ constitutes ‘pith and marrow’ or not i.e. if the new feature constitutes claimed by the plaintiff in their patent is an essential feature of the invention or not.

This case is also important because in this case the apex court has made several observations and made certain directions regarding the speedy disposal of cases related to intellectual property. The Supreme Court has directed to hear intellectual property cases on a day-to-day basis and to decide the cases within 4 months from the date on which they were filed.

2. Novartis v. Union of India (2013) SC 4

In this case, Novartis Pharmaceutical Company has applied for patenting a drug ‘Gleevec’ which was rejected by the Indian patents office. Novartis challenged all the rejections in the apex court.

It was held by the Supreme court that the substance that was sought to be patented by Novartis was a modification of an already known drug that was in the public domain since 1993 thus it lacks novelty requirement under patent law. As well Novartis has also not shown any evidence of any therapeutic efficacy of its modified medicine over the already existing drug which is a mandatory condition under section 3 (d) of Patents Act, 1970.

The court thus held that there was no invention done and a mere discovery of an already existing drug does not amount to invention. The application was accordingly dismissed by the court.

3. F. Hoffman-La Roche Ltd. v. Cipla Ltd. (2012) Delhi HC 5

This case has arisen over a dispute where Cipla has filed a patent application for a generic drug ‘Erlopic’ which was manufactured using a polymorphic compound of Erlotinib Hydrochloride. While patent for Erlotinib Hydrochloride was already been given to another company Roche. Therefore, Roche has filed an infringement application against Cipla. But Cipla claimed that it had not used Erlotinib Hydrochloride in its medicine ‘Erlopic’ but had only used a polymorphic compound of Erlotinib Hydrochloride.

It was finally held that Cipla has infringed the patent of Erlotinib Hydrochloride granted to Roche as any preparation of a polymorphic compound of Erlonitibactually first does involve the manufacturing of Erlotinib Hydrochloride. The patent application of Erlotinib Hydrochloride also has stated that its compound form can exist in different polymorphic forms and any such forms will be covered by its patent.

4. Bayer Corporation vs Union of India (2014) Bombay HC 6

Bayer Corporation patented a cancer medicine ‘Nexavar’. Indian patent office exercised its rights and granted a compulsory license of Nexavar to Natco Pharma. Ltd. for producing a generic version of it. The patent office has also directed Natco to pay royalties to Bayer, to donate 6000 free medicine to the public, to manufacture the medicine locally, and to sell the medicine only in India and not to assign manufacturing of it to others.

Meanwhile, Bayer was manufacturing the same medicine for a comparatively higher price than what Natco offered to the public. Aggrieved by the patents controller’s decision Bayer moved to IPAB (Intellectual property appellate board) and filed an application which got rejected. Bayer now filed an appeal before the board which was also rejected.

Bayer Corp. then filed an appeal before The Bombay High Court which held that compulsory licensing of life-saving drugs falls within the right of the Indian patents office as well as the rule of making available of patented drugs at an affordable price for the general public should be maintained as per section 82(1)(b) under The Patents Act, 1970. The judgment passed by The Bombay High Court was later upheld by The Supreme Court.

5. Yahoo! Inc. v. Akash Arora &Anr(1999) Delhi HC 7

This case relates to unauthorized registration and use of internet domain names that are similar and identical to registered trademarks and service marks also known as ‘Cyber Squatting’.

In this case, the defendant was using a domain name ‘Yahoo India’ which was extremely identical to that of the plaintiff’s ‘Yahoo!’. It was held that the defendant’s ‘Yahoo India’ has the potential to confuse and deceive internet users into believing that both are the same and belong to the same ‘Yahoo!’. The court explained that a disclaimer in this regard by the defendant to make people aware is not sufficient and it is immaterial if the term ‘Yahoo’ has a dictionary meaning as over the years Yahoo! has already acquired ‘distinctiveness’ and ‘uniqueness’ as required under the trademark law. The High Court has also held that domain names on the internet are used by business groups for the same purpose as any trademark or service mark.

6. Clinique Laboratories LLC &Anr v. Gufic Ltd. &Anr. (2009) Delhi HC 8

This case relates to the infringement of trademark and passing off i.e. selling goods by falsely misrepresenting the goods to belong to some other.

In this case, Plaintiff had a registered trademark ‘Clinique’ and it came to know about a similar trademark ‘Derma Cliniq’ registered by the defendant. The plaintiff then filed a petition for cancellation/rectification before the Registrar of Trademarks. The plaintiff later filed an application before the court for an injunction regarding infringement of its trademark by the defendant and for restraining the defendant from passing off its goods as that of the plaintiff’s.

However, under section 124 (1) of The Trademarks Act, 1994 any suit for infringement should be stayed by the court till the cancellation/rectification petition is finally decided and disposed of by the Registrar of Trademarks. The plaintiff thus filed for a stay of the present suit and had sought permission to apply for removal of the trademark from the trademarks register which was registered by the defendant.

But, at the same time section 124 (5) of The Trademarks Act, 1994 makes a provision where the court has the authority to pass an interlocutory order. Thus, the court exercising this power held that it has the authority to pass interlocutory orders in the form of injunction, attachment of property, the appointment of a receiver, order for account keeping, etc. if is prima facie convinced of invalidity of a registered trademark.

The court held that identical and similar trademarks, though registered later; can be challenged by the owner of an earlier registered trademark. The court further held that pending rectification/cancellation petition or infringement suit the court is allowed to pass such interim orders as it deems necessary and proper. The court therefore upon being primarily convinced about the invalidity of the registration of the defendant’s trademark restrained the defendant from using its registered trademark till the disposal of a rectification/cancellation petition by the Registrar of Trademarks.

7. Star India Pvt. Ltd. v. Moviestrunk.com &Ors. (2020) Delhi HC 9

In this case, Plaintiff Star India was a film production and distribution company while the defendant owned online streaming websites. The case relates to unauthorized streaming of the plaintiff’s film on the defendant’s streaming website. The plaintiff filed a suit for infringement of copyright.

The Delhi High Court held the defendant liable for infringement of copyright of plaintiff work for streaming its copyrighted content without the knowledge and consent of the plaintiff. The Court granted injunction and damages and thus Plaintiff’s exclusive right to exploitation was re-ensured.

8. Marico Limited v. AbhijeetBhansali(2020) Bombay HC 10

In this case, the defendant who is a YouTuber and a social media influencer has made objectionable and disparaging comments on ‘Parachute hair oil’ in one of his videos and has used the parachute hair oil bottle in his video.

The plaintiff Marico Ltd. who is the owner of Parachute Oil Brand has applied for the removal of the video on the grounds that the YouTuber through his video has harmed the goodwill of the company and has also violated its trademark ‘Parachute’.

The court while interpreting Section 29 of The Trademarks Act, 1999 held that defendant has violated the exclusive trademark rights of the plaintiff by not seeking prior permission or consent of the plaintiff, and thus, the court ordered the removal of video.

9. Bajaj Electricals Ltd. v. Gourav Bajaj &Anr.(2020) Bombay HC 11

In this case, the plaintiff was a duly incorporated company and a part of Bajaj Group conglomerates of businesses and industries. The defendant was a person who had the word ‘Bajaj’ as title in his name. The defendant in his 2 electrical stores and website had used the name ‘Bajaj’. He has also used the expression ‘Powered by: Bajaj’ on his product labels.

The plaintiffs proved that their name has become a well-known mark over several decades and therefore only they are now entitled to use it and not the defendant or anybody else. The defendant claimed legitimate use of his name but, the plaintiffs also proved the malafide intention of the defendant over the use of the name on the labels of his products where he has tried to deceive people by using the name ‘Bajaj’ in such a way that made people believe as if his products are endorsed by The Bajaj Group.

The court agreed with the grounds raised by the plaintiffs and thus passed an interim injunction against the use of the trademark by the defendant on their products as well as in their domain name.

10. ISKON v. Iskon Apparel Pvt. Ltd. (2020) Bombay HC 12

The plaintiff ISKON has filed the case on infringement of its trademark by the defendant, where the defendant has used the word ‘ISKON’ on its products and has also passed off his brand. The plaintiff has also sought to get their trademark declared as a well-known mark.

It was held that the defendant has clearly infringed the trademark of the plaintiff and has also passed off his brand by deceiving people and giving them a false belief that its products are associated with the plaintiff. The court also held that plaintiff’s trademark has satisfied all the criteria to become a well-known mark.

Page 281 Book: Studies in Jurisprudence and Legal Theory by Dr. N. V. Paranjape
https://www.wipo.int/about-ip/en/
https://indiankanoon.org/doc/248352/
https://indiankanoon.org/doc/165776436/
https://indiankanoon.org/doc/123231822/
https://indiankanoon.org/doc/28519340/
https://indiankanoon.org/doc/1741869/
https://indiankanoon.org/doc/99626708/
https://www.casemine.com/judgement/in/5e55cdc49fca193984fd7305
https://indiankanoon.org/doc/79649288/
https://indiankanoon.org/doc/101671569/
https://indiankanoon.org/doc/83405343/

Written by Naman Practising Advocate at Patna High Court and student at Gujarat National Law University.

Copyright piracy and cybercrime: enforcement challenges in India

By Arpan Banerjee and Neil Gane , Alliance for Creativity and Entertainment (ACE), Hong Kong (SAR), China

In recent years, concerns around online content piracy have increased around the world. The reasons are well-known: a rise in illicit streaming platforms and torrent websites; errant web hosting services that ignore piracy on their servers; and the ease and anonymity offered by certain online intermediaries. A further hazard arises from linkages between piracy and hi-tech cybercrimes. While governments worldwide are grappling with these obstacles, a country that merits special attention is India — where a globally prominent film industry is hindered by widespread piracy and a challenging enforcement environment.

The Piracy-Cybercrime Nexus

In 2010, the Indian government’s Committee on Piracy (CoP) linked piracy with large revenue and job losses. The CoP presciently observed that the advent of smartphones and 3G would make it “much easier to undertake all kinds of film piracy.” Indeed, today, premium streaming services in India are routinely victims of mass piracy. Like in other countries, piracy syndicates in India profit mostly through user subscription fees or advertising revenues. The former method, though brazen, is self-explanatory. The latter method, however, is more insidious, owing to the presence of high-risk advertisers promoting suspicious links. Research, by McAfee , tracking pirated Indian movies and shows, has flagged such links for attempting “to install malware or steal passwords and personal information.”

For further insights, we interviewed Lieutenant-General Rajesh Pant, a noted military cybersecurity veteran now advising the Indian government as National Cyber Security Coordinator (NCSC). Pant explained: “Malware is the starting point of all our cyberattacks, whether it is financial fraud, piracy, data theft or an attack against a strategic sector. Everything starts with luring or clickbaiting.”

Pant listed some recent government initiatives meant to address the threat, including a National Malware Repository and the Indian Cyber Crime Coordination Centre (I4C). Notably, the I4C includes a National Cyber Crime Reporting Portal , where cases of piracy — with or without a malware nexus — may be reported. Pant added that piracy and malware attacks were separately punishable under the Copyright Act 1957 and the Information Technology Act 2000.

Criminal Enforcement

Despite the impressive expertise of the NCSC and I4C, India’s federal make-up means that the responsibility to investigate piracy generally lies with state governments. Thus, the success of anti-piracy enforcement in India is often determined by subnational rather than national efforts. Here, the CoP had observed that piracy is “very low in terms of priority in the radar of law enforcement agencies.” Similarly, the International Intellectual Property Alliance has reiterated that criminal enforcement in India is “very daunting” , and marked by “lack of appetite by local enforcement and significant time delays” .

Pursuing pirates outside major cities appears to be particularly challenging. For example, we examined the records of a high-profile piracy case in the city of Jabalpur ( Rahul Mehta v State of Madhya Pradesh (2015) ). In 2015, the Jabalpur police had arrested a piracy syndicate responsible for pirating Baahubali , one of the highest grossing Indian movies of all time. The accused were granted bail by the trial court. However, the case is still pending and there is no record of a hearing after 2017. Gallingly, the accused were arrested again , in Hyderabad, for pirating Baahubali 2 , the film’s equally successful sequel. While in the recent case of Knit Pro International v State of Delhi (2022), the Indian Supreme Court declared criminal copyright infringement as a “non-bailable” and “cognizable” offence (i.e. one is arrestable without warrant and only a court can grant bail), the ground-level impact of the decision is unclear.

Many right holders see the benefits of using criminal prosecutions as deterrents.

The MIPCU Model

At the state level, a novel enforcement model exists in the form of a police unit in the state of Maharashtra (whose capital, Mumbai, is the hub of Bollywood). The Maharashtra government established the Maharashtra Intellectual Property Crime Unit (MIPCU) in 2017 to provide right holders better enforcement.

The MIPCU was established as a division of Maharashtra Cyber, the state police’s cybercrime wing, and structured as a public-private partnership. To learn more, we visited the office of Maharashtra Cyber and met with the officers currently at the helm: Yashasvi Yadav, Special Inspector General of Police, and Sanjay Shintre, Superintendent of Police. We also met with a team of computer professionals, who make up the MIPCU’s engine room, and interviewed them via a written questionnaire (which they preferred to answer collectively, as “Team MIPCU”).

Yadav acknowledged that piracy was “rampant” in India. He also confirmed linkages between piracy and malware, stating: “Certain malware providers use pirated content as a trap. Their main business is not piracy. Their main intention is to infect computers, steal data or install spyware. People are prone to click on freeware and free content.” Yadav added that it was “not an easy task” to track down such malicious actors, who frequently masked their footprints using technologies like VPN and Tor browsers.

Shintre, however, pointed out that cybercriminals did occasionally slip up. He cited the 2021 case of ThopTV, a popular piracy app funded by subscription fees. Apparently, ThopTV’s mastermind had inadvertently disclosed his whereabouts, allowing Maharashtra Cyber to swoop in and arrest him. Interestingly, the arrest had occurred outside Maharashtra, in Hyderabad. In May 2022, an accomplice was arrested by Maharashtra Cyber near Kolkata. Yadav and Shintre explained that Maharashtra Cyber could pursue pirates outside Maharashtra if pirated content was being disseminated within Maharashtra. Such a move, however, is contingent on registering a “First Information Report” (FIR) in Maharashtra. In other words, such action can only take place when a copyright owner files a criminal complaint, after which the police prepare a report. The onus of filing the complaint lies on the copyright owner.

Despite potential advantages, the MIPCU does have limitations. For a start, the MIPCU cannot directly shut down piracy websites or apps. Such action is the administrative remit of the Indian Ministry of Electronics and Information Technology (MEITY). Further, Team MIPCU’s responses to our questionnaire indicate that the unit relies heavily on voluntary compliance. In this regard, Team MIPCU listed many difficulties, ranging from non-compliant hosting services in “rogue geographies” outside India to “members-only” piracy platforms hidden from public view.

Other limitations raised include sluggish takedown times over weekends, with some mobile apps taking up to two weeks to act. Moreover, Yadav noted that despite the ubiquity of online piracy, right holders were not registering enough FIRs with Maharashtra Cyber. “I have not seen more than a handful,” he remarked. Yadav felt that this limited the police’s ability to escalate matters.

Many right holders, however, do see the benefits of using criminal prosecutions as deterrents. In a separate interview, Anil Lale, General Counsel of Viacom 18, informed us that Viacom 18 had filed multiple complaints with Maharashtra Cyber, including the FIR in the ThopTV case (for which Lale praised the MIPCU’s “commendable action).”

Lale declined to comment on the strategies of other content media companies, but offered some suggestions as to why the number of FIRs may be low. He pointed to systemic problems with the legal system and law enforcement, the difficulty in prosecuting overseas-based pirates, and the tendency of many right holders to prioritize (understandably) the removal of pirated content over the prosecution of offenders. Lale also felt that, insofar as it is a state-level body, the MIPCU had inherently limited powers and resources. Given these drawbacks, he suggested that the establishment of a larger, national body empowered to receive and investigate complaints from across India might be more effective.

The battle against online piracy in India (and beyond) is […] weighed down by universal and local challenges.

Civil Enforcement

On the civil litigation front, the situation in India appears brighter. Many states in India have set up fast-track courts, and the Delhi High Court has recently established an Intellectual Property Division. The Delhi High Court’s approach towards online film piracy (expertly summarized by Justice Pratibha Singh of the Intellectual Property Division in a recent WIPO presentation [ PDF ] ) has been especially noteworthy. In the leading case of UTV Software Communications Ltd. v 1337X.to (2019) , the court recognized “dynamic” injunctions (to preempt pages from shifting across different URLs) and specified criteria to determine when to block “rogue websites” (i.e. websites that "primarily or predominantly share infringing content).” Pant explained that MEITY officials meet regularly among themselves and with intermediaries to implement such blocking orders. The MEITY instructs the Department of Telecommunications to inform ISPs to carry out the blocking of an IP address, which he notes can be done in “a matter of minutes.” More recently, the Delhi High Court, in Neetu Singh v Telegram (2022), directed Telegram to disclose information about uploaders of pirated content.

However, by the time a court order is passed, and finally executed, the proliferation of pirated content may have already occurred. This shortcoming (which is not peculiar to India) is especially relevant for pirated streams of live entertainment and sports events. Legal costs, which may be prohibitively expensive for smaller outfits, present another major hurdle in the civil litigation process.

The Way Ahead

The battle against online piracy in India (and beyond) is evidently weighed down by universal and local challenges. The universal challenges range from the technological sophistication of cybercriminals to problems of international jurisdiction. The local challenges, however, chiefly encompass systemic problems with law enforcement agencies and the criminal justice system. Realistically, it is perhaps only the latter issue that the Indian government can address.

The CoP has observed that piracy is inappropriately viewed as “a low-risk high-reward” crime in India, with law enforcement agencies challenged with tackling “heinous criminal activities.” However, if the linkages between piracy and malware are better highlighted ¾ through research studies, symposiums, and police training workshops ¾ piracy should automatically rise in the pecking order of serious crimes and receive greater attention. This task could plausibly be undertaken by the Cell for IPR Promotion and Management (CIPAM), a training and awareness cell launched by the Indian government in 2016. CIPAM’s website shows that it has organized several educational workshops and involved leading Bollywood stars in an anti-piracy campaign.

Finally, many state governments may consider setting up their own IP cybercrime units. Operated in a targeted and cost-effective manner, such units would likely attract the endorsement and support of industry. In prioritizing the certainty of punishment over its severity, these units would also, no doubt, offer a service that most right holders would like to see in place.

The WIPO Magazine is intended to help broaden public understanding of intellectual property and of WIPO’s work, and is not an official document of WIPO. The designations employed and the presentation of material throughout this publication do not imply the expression of any opinion whatsoever on the part of WIPO concerning the legal status of any country, territory or area or of its authorities, or concerning the delimitation of its frontiers or boundaries. This publication is not intended to reflect the views of the Member States or the WIPO Secretariat. The mention of specific companies or products of manufacturers does not imply that they are endorsed or recommended by WIPO in preference to others of a similar nature that are not mentioned.

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India - Case studies

The India IP SME Helpdesk offers a wide range of case studies showcasing different experiences from EU SMEs doing business in India. They cover a wide array of topics, ranging from the registration of trade marks to the protection of confidential information.

These case studies aim to illustrate the difficulties related to the protection of intellectual property that EU SMEs deal with when internationalising to India, and how to best avoid them.

These case studies will be listed below as soon as they are published.

General publications
20 December 2022
European Innovation Council and SMEs Executive Agency

This case study highlights the importance of selecting the rights products and services for which trade mark protection is sought, and how coexistence agreements can be an option to resolve preliminary refusals of trade mark applications in India.

11 November 2022

This case study illustrates the dangers which EU SMEs may face when applying for IP registration abroad, and what are the best practices to follow to avoid becoming a victim of this type of scams.

21 October 2022

This case study presents illustrates the importance of understanding the Indian legislation when it comes to the rights and responsibilities imposed upon employers and employees when dealing with a company's confidential information.

On the importance of well-drafted contracts when transferring technology to the Indian market.

13 October 2022

This case study illustrates how the payment of royalties for sound recordings is governed in India and how to conduct negotiations in this sector.

6 July 2022

Be careful: in India copyright and industrial design protections are not complementary. Here is why, and how to act in order to avoid problems with the protection of your designs.

10 May 2022

This case study illustrates best practices and issues which arise at the time of protecting trade marks with transnational reputation.

This case study is about the factors which come into account when deciding in favour of expensive patent protection, or cheaper - but riskier - trade secret protection

18 February 2022

This case study presents the situation in which an EU SME had to call for help from customs to take action against infringers.

7 February 2022

How the Champagne GI has been protected in India by the association of producers.

This case study illustrates a non confrontational option to face infringers in India: striking a deal with them

This case study tells the story of a French SME who had to take the relevant steps to protect its copyright against infringers in India

26 January 2022

A case study illustrating what can happen if an Indian patent application does not disclose the best method for using or working the applied invention.

A case study illustrating how an EU SME has used IP licensing to enter the Indian market at reduced costs.

12 November 2021

An EU SME show us how to act in case their patent is being infringed in India

9 November 2021

A case study on how a European company acted in after it spotted its trade mark was being infringed on the Indian market.

23 August 2021

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16 August 2021

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5 Leading Cases of Intellectual Property Rights

5 Leading Cases of Intellectual Property Rights | Overview

Introduction

1. Bayer Corporation v. Union of India [1]

Issues Involved

2. Diamond v. Chakrabarty [5]

Issue Involved

Arguments Raised by the Appellant

3 . Yahoo ! Inc. vs. Akash Arora & Anr [11]

4. The Coca-Cola Company v. Bisleri International Pvt. Ltd. and Ors. [18]

5. D.C. Comics v. Towle [22]

Facts of the Case

Summary of Judgment

Fathima Mehendi

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Developments Over the Last Five Years

U.S. Government Engagement

Legislative Climate

Regulatory Climate and Hurdles

Pharmaceutical and Medical Devices

Enforcement Climate

Celebrating 20 Years of IP Excellence

2. Krishna Kishore Singh vs. Sarla A. Saraogi & Ors., High Court of Delhi, CS(COMM) 187/2021

3. Dassault System Solidworks Corporation & Anr. vs. Spartan Engineering Industries Pvt. Ltd. Anr., High Court of Delhi, CS(COMM) 34/2021

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