Delhi HC Grants Interim Injunction To Eveready Industries Against Use Of The Trademark “EveryDay”

Delhi High Court recently granted an interim injunction to Eveready Industries against the use of the trade mark “EveryDay” for kitchen appliances.

Eveready Industries filed a trade mark and copyright infringement suit before the Delhi High Court against an entity KSC Industries to restrain it from using the trade mark “EveryDay” for kitchen appliances including kitchen lighters.

Eveready Industries was founded in the year 1905 and is engaged in the business of batteries, flashlights, and various other lighting products under the trade mark “EVEREADY”.  Eveready argued that the adoption of the trade mark “EveryDay” by the Defendants is completely with the mala fide intent to deceive the consumer and pass off its goods as of Eveready. Eveready also argued that the trade dress adopted by the Defendant is also completely similar to Eveready’s trade dress.  

The Hon’ble Court after hearing the submissions on the matter restrained the Defendant from using the trade mark “EveryDay” and its trade dress or any other identical to or deceptively mark.

Eveready was represented by Mr Ankur Sangal, Partner, Khaitan & Co with the assistance of Ms Sucheta Roy, Principal Associate and Ms Nidhi Pathak, Associate. 

(Courtesy:- BWLegal World, 27 March 2024)

 

Delhi High Court restrains private entities from using ‘KHADI’ in trademark infringement lawsuit

The Khadi and Village Industries Commission said the right to use the ‘KHADI’ mark for textile products requires the person or organisation to apply for recognition through the Khadi Institutions Registration and Certification Sewa.

“Resultantly, the defendants as well as all others acting on their behalf shall stand restrained, during the pendency of the suit, from using, directly or indirectly, the mark KHADI, either as a word or as part of its trade name or name of its business concern, as well as from using the impugned marks, or any other mark identical or deceptively similar thereto,” the court ordered.

It also restrained the defendants from operating any social media page, including Facebook, Instagram and YouTube, using their names or from reflecting the ‘KHADI’ mark on their website.

Justice Shankar noted that the defendants had admittedly used the ‘KHADI’ mark “to designate its activities relating to use, display and promotion…of the Khadi fabric and the Khadi culture” with the activities of KVIC.

“The submissions advanced by the defendants in their defence, therefore, themselves vouchsafe their intent to create an association with the plaintiff KVIC, by using the impugned marks. The fact that the use of the impugned marks by the defendants would lead to an impression of association between the defendants and the plaintiff, therefore, stands conceded by the defendants,” the court said.

On the issue of trademark infringement, the court said that the activities of the defendants in relation to the use of the mark were similar to the activities of the plaintiff “as the defendants themselves admit that their activities are interlinked; in fact, that the defendants’ aim is to promote the use of Khadi, in which the plaintiff is admitted by the defendants to be the nodal organisation”.

The court observed that once the very intent to create an association is acknowledged by the defendants, “the likelihood of inference of such association, thereby, in the minds of the consuming public, and the possibility of confusion thereby, also stands admitted. Section 29(2), thereby, squarely applies, and a prima facie case of infringement, under the said provision, therefore, exists”.

On the issue of passing off, the court noted that the defendants claimed that they were sourcing fabric manufactured by KVIC bearing its mark from “authorized outlets and stockists” and used it in designer clothing, beauty pageants etc. The intent to associate the activities of the defendants with those of the plaintiff is, therefore, not only apparent but admitted, the court noted. The court further said that KVIC did not grant the defendants the authority to do so and hence these attempts “prima facie” amount to passing off by the defendants, of their services as those of the plaintiff or at the very least drawing an association between the two. The court also noted that no written consent had been taken by the defendants from KVIC to use the trademark.

According to KVIC, the right to use the ‘KHADI’ mark for textile products requires the person or organisation to be enlisted as an authorised user of the ‘KHADI’ trademarks for which it has to apply for recognition through the Khadi Institutions Registration and Certification Sewa. KVIC is a statutory body formed in 1957 by the central government under the Khadi and Village Industries Commission Act of 1956 to plan, promote, facilitate, organise and assist in the establishment and development of khadi and village industries in rural areas. It further argued that it is the nodal agency to implement the Prime Minister Employment Generation Programme (PMEGP).

The KVIC moved the high court claiming that they became aware of the infringement of their mark in December 2019 when the defendants organised the National Khadi Designers Awards, 2019 and the Miss India Khadi event at Goa, in which they were using the word mark KHADI as well as the charkha logo. The KVIC sent them a legal notice following which the defendants removed the mark and logo from their banners, posters and hoardings. KVIC subsequently came to know that the defendants infringed on their KHADI and charkha trademarks through various other methods. KVIC also alleged that defendants were falsely claiming to be associated with the PMEGP by providing, on their website, a hyperlink which redirects to the PMEGP page of KVIC.

It was the defendants’ case that the intellectual property rights over the term ‘Khadi’ would vest with every person who is associated with Khadi. They said that being publici juris (belonging to the public), the Khadi mark cannot be appropriated exclusively by the KVIC. (Courtesy:- The Indian Express, 8 April 2023)

Coming, a law which gives directors film copyright :1957 Act Only Recognizes A Producer’s Ownership

Call it the director’s cut. The HRD ministry has come up with a bill which confers copyright of a film not just upon the producer, but also on the director. For films made after the proposed law comes into force, the producer and director will be ‘‘treated jointly as the first owner of copyright’’. Thus, the director is finally getting his due as the creator.

The joint ownership redresses an anomaly in the Copyright Act 1957, which in the case of books, confers copyright on the author leaving out the publisher but in the case of films, on the producer leaving out the director. The existing law treats a director as an employee of the producer and consequently denies him any intellectual right over the film he creates. Since the proposed clause equating the director with the producer will apply prospectively (from the day the law is enacted), the directors of films already produced will not get the full benefit of this reform. The bill seeks to compensate them by extending the copyright term for such films from 60 years to 70 years after the death of their first copyright owners.

The additional copyright term of 10 years is however ‘‘subject to the principal director entering into a written agreement with the owner of the copyright in the film during the subsistence of copyright’’. The accompanying note explains that this is meant ‘‘to extend the copyright term for the producer for another 10 years if he enters into an agreement with the director’’.

The implication is that for the additional term of 10 years, the producer and director will jointly enjoy copyright on films already made. The intention, clearly, is to confer some benefit on the director even in the case of films made before the commencement of the proposed law.

The proposed Copyright Act Amendment Bill 2009 is now being vetted by law ministry. Later, after Cabinet clearance, it will be introduced in Parliament. Law ministry is now examining the bill to see if is valid to increase the copyright term by 10 years only for films, discriminating against other artistic and literary works.

The note prepared by the HRD ministry justifies the preferential treatment arguing that ‘‘old Indian classical films, especially Bollywood films, are falling into public domain and these are being exploited by TV channels’’. This is part of a slew of amendments being made to the 1957 act affecting the business of films, music, radio and TV.

While much as its attempt to give the director his due is laudable, the bill is not clear on how the term of the copyright for the new films will be computed when both the director and producer are the ‘‘first owners’’. It is not clear whether it will be 60 years after the death of the director or the producer, or whoever dies last.
Source:- The Times of India 2 December 2009 Page No.15 Delhi

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Pre-1923 Publication not in Copyright Public Domain [United States]

In Societe Civile Succession Richard Guino v. Renoir, (9th Cir., December 2008), the court held that works first published in France no later than 1917 without a U.S.-style copyright notice were never subject to U.S. copyright under the 1909 Copyright Act, and therefore could not have fallen into the public domain in the U.S.
This holding is particularly interesting because, as the Ninth Circuit noted, "[t]he year 1923 is significant because the 1976 Act . . . and the 1998 Copyright Extension Act operate together to create a bright line rule for which works are now in the public domain: works published before January 1, 1923 are generally in the public domain." This rule is even noted in Copyright Office Circular 22 which states
. . . the U.S. copyright in any work published or copyrighted prior to January 1, 1923, has expired by operation of law, and the work has permanently fallen into the public domain in the United States. For example, on January 1, 1997, copyrights in works first published or copyrighted before January 1, 1922, have expired; on January 1, 1998, copyrights in works first published or copyrighted before January 1, 1923, have expired. Unless the copyright law is changed again, no works under protection on January 1, 1999, will fall into the public domain in the United States until January 1, 2019.
The works at issue were sculptures by the famed artist Renior and one of his assistants Richard Guino.
Source:-http://law-wire.blogspot.com/2009/03/pre-1923-publication-not-in-copyright.html

GM brinjal battle goes to HC

Greenpeace Seeks Data On Field Trials; Firm Says It’s Trade Secret

The Times of India 27 March,2008 P. 13 The Times of India Delhi

New Delhi: It’s a classic case of commercial interest vs public interest which could set an important precedent. Genetically modified brinjal — expected to be the country’s first edible GM crop — could find its way to your plate soon.

But first, Delhi high court will have to decide whether the company conducting its field trials can keep data on health and environment safety tests out of the public domain on the grounds that the information is a “trade secret”.

The data in question comprises toxicity and allergenicity studies and was submitted by Maharashtra Hybrid Seeds Co Ltd (Mahyco), a subsidiary of multinational Monsanto, to the department of biotechnology for regulatory clearances.

A representative of environmental watchdog Greenpeace sought access to the data under the Right to Information (RTI) Act, 2005. Currently, open-air field trials of GM brinjal are being conducted in the fields of 11 public sector institutions. It is expected to hit the market by 2009, with Indians being the first global consumers of this transgenic crop.

While Greenpeace says disclosure is in public interest, Mahyco has moved high court seeking quashing of the order passed by the Central Information Commission last year ordering the department of biotechnology to release data on the safety tests.

The company has argued that the data contains immense patentable information and should be considered its intellectual property.

In its petition, it has also said that the CIC order violates the government’s obligations under TRIPS. The CIC order came after the department of bio-technology turned down Greenpeace’s plea for data on the grounds that the information it sought included “commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party”.

Besides brinjal, Greenpeace also sought bio-safety data on GM bhindi, mustard and rice. However, the CIC found merit in the Greenpeace argument that the data would not be used for commercial purposes and was sought to ascertain the risks that transgenic crops pose, particularly when open-air field trials are being conducted across the country.

The second time around, the department of biotechnology did not deny access but said the data could not be provided as it ran into thousands of pages.

The Central Information Commission heard a second appeal on November 22, 2007. The Commissioner, after going through the Environmental Protection Act (1986), noted that ‘‘genetically engineered organism or cells are recognised by the government as an item potentially hazardous to public heath. “It automatically follows that full compliance with these rules is a matter for public interest”.

Mahyco subsequently moved Delhi high court which passed an interim order in December 2007 staying the CIC order till the next hearing of the case on April 23. GREEN VS PURPLE GM brinjal, which has not been tested anywhere in the world before, will be India’s first edible transgenic crop It has the same Cry1Ac gene from Bacillus thuringiensis as cotton, which makes it tolerant to fruit and shoot borers, pests which attack it throughout its life cycle. It is being tested at 11 locations under the supervision of the Indian Institute of Vegetable Research at Varanasi. This is a major departure from large-scale trials of cotton which were conducted on farmers’ fields .

With thanks from The Time of India
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The indigenous question of patents and pricing

The Economic Times 11 Mar. 08 Tuesday P 17 Delhi

INDIAN drug companies have been faring dismally, as opposed to their counterparts headquarterd in the US and Europe as far as high-end drug discovery is concerned. The situation is not any different in core drug discovery—read invention, of new chemical entities (NCEs) with confirmed commercially relevant therapeutic value and tolerable toxicity.

This is despite recent years’ hype about Indian pharma companies’ licensing out some molecules at clinical and pre-clinical stages of development to foreign drug companies and R&D institutes. Most of these licensing deals have come a cropper because these drug molecules have failed to pass through the later stages of clinical development. The results have almost invariably been abandonment of these molecules by foreign companies which licensed the molecules in.

The government has been supporting the R&D ventures of private pharma companies in some ways. In recent years, publicly funded institutions like CDRI, IICT, CCMB, CBT etc. under the CSIR as well as other premier institutes like NIPER have been partnering with private companies, with greater willingness. These partnerships mostly comprised peripheral research activities but included some new molecule development activities and frontier research (like genomics and stem cells) also.

Fiscal incentive (150% weighted deduction of R&D spend on computing income tax liability) has been another kind of government support. Then there are many schemes which essentially allow pharma companies to avail of public funds for R&D, although these funds have deplorably small sizes when gauged in the context of the colossal funding requirements for core and high-end R&D.

Partly for the dearth of finances, drug majors in India are now focusing on second-rung research activities like new delivery systems. One form of government support for drug R&D has been an assertion in the drug policy that drugs begotten from indigenous R&D would be spared price control for the first five years in the market. Some companies have already benefitted from this measure. However, an issue has now emerged.

The government has now made it clear that it would introduce a system of premarketing negotiation of the prices of patented drugs. What is being said is the government would ensure that prices of medicines that would get patent protection in India would be sold cheaper than their lowest “international price.” Sources say the Canada model, which guarantees the lowest price for a patented drug anywhere in the world, is likely be emulated here. (Of course, purchasing power difference between the two countries would be factored in). The guidelines are being framed.

The issue mentioned above is that wouldn’t the new system be at odds with the present policy of giving five-year exemption from price control for drugs begotten from indigenous R&D?. Why should there be a special intellectual property dispensation for Indian companies? Is such differentiated treatment compatible with the WTO’s TRIPS agreement? Already, the western governments decry Indian patent law for its alleged TRIPS-minus nature. However, a sizeable section of experts across the globe, including those in the WTO’s own World Intellectual Property Organisation disagrees with the western governments’ stance.

These experts extend their allegiance to India’s Patent Act, including the most contentious provision of Section 3(d) which seeks to enhance the standards of patenting.Although India has gained considerable international approbation for its courageous defence of the patent law that is strictly TRIPS-compliant without being TRIPSplus, there is now a concern that the differential treatment for Indian companies would undermine this support base. The contention is that existing incentives like low cost funds and income tax relief are tenable schemes to sour indigenous R&D but not a differential pricing of patented drugs. Anybody listening?

With thanks from The Economic Times
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Does the government hold absolute copyright over appellations “Indian” and “National” when it comes to using them for educational institutions?

The Times of India Delhi 13th Feb 2008 Page 13

The issue has been thrown up by a fiat by the All India Council of Technical Education (AICTE), the apex regulatory body for engineering and technical education in India, prohibiting private institutions from using these two words. Worse, AICTE wanted all institutions having names containing “Indian” and “National” to drop these to comply with its directive. Many, fearing derecognition, fell in line and got their signboards repainted. So did Selvam Educational and Charitable Trust. It changed the name of its engineering college but decided to contest the move. Opposing the 2002 decision of AICTE, Selvam Trust on Monday tossed a question for a SC bench comprising Justices Altamas Kabir and J M Panchal to mull — can there be a state monopoly over the words “Indian” and “National”. Arguing for the Trust, senior advocate Arun Jaitley said that AICTE’s order marked a major anomaly where all kinds of commercial establishments — from shopping malls to restaurants — were free to use “Indian” or “National” while a private engineering or technical institution could not do the same even if it had a reputation for excellence. The Trust, through advocate G Balaji, put another poser — did not the AICTE’s decision conflict with the Emblems and Names (Prevention of Improper Use) Act that does not prohibit the use of the word “Indian” by any firm or company. While issuing notice to AICTE, the Bench stayed its controversial notification of 2002 till further orders, clearing the way for private institutions to use the appellations in dispute. The Selvam Trust had set up ‘The Indian Engineering College’ in 1984, which was recognized by the Tamil Nadu government and even granted minority status. However, when the notification prohibiting use of the words “Indian”, “National”, “All India”, “All India Council”, “Commission” in part of the name of the technical institution came, the Trust was forced to change the name of its institute to escape being derecognised. The institute was renamed ‘Rajaas Engineering College’. But Trust decided to challenge the directive and did not give up despite the Madras HC rejecting its plea. The AICTE directive prohibits private institutes from using names whose acronyms sound similar to “IIM”, “IIT”, “IISc”, “AICTE” or “UGC”. The AICTE justified its decision saying that it was meant to protect students from being duped. The order is, however, being opposed by those who feel that it marked a throwback to the age when government exercised all-pervasive control over citizens’ lives, and was out of sync with prevailing ethos.

Times View The notion that the state should have the exclusive rights to use the word ‘Indian’ when it comes to naming educational institutions betrays a deeper malaise — the mindset that confuses the state with the nation. It would be an unacceptable reduction that the word ‘Indian’ refers to things that are owned by the government. The AICTE seems to believe that students might be fooled into believing that an educational institution is stateowned or state-run if it has the word Indian in its name. This is an insult to the intelligence of those who are seeking professional education in India. It should, even at this stage, recognize the error in its mindset and acknowledge that the word Indian belongs to all Indians, individually and collectively.

With Thanks from the Bennett Coleman & Co. Ltd.
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Wyeth not to sue Sun Pharma over generic Venlafaxine

17 Oct, 2007 The Economic Times

MUMBAI: Sun Pharmaceutical Industries has received a covenant ‘not to sue’ from Wyeth over Sun Pharma’s abbreviated new drug application for generic venlafaxine extended release tablets with multiple para IV certifications.

This ANDA for generic venlafaxine extended release tablets, AB-rated equivalent of Wyeth’s Effexor XR capsules, includes three strengths: 37.5 mg, 75 mg and 150 mg and is based on innovative technology for extended release tablets.

These strengths of Effexor XR capsules annual sales is $2.6 billion in US.

As per the agreement, Wyeth covenants not to sue Sun under any claims of US Patent Nos. 62,74,171, 6,40,13,120 and 64,19,958.

Venlafaxine is an antidepressant of the serotonin-noreplnephrine reuptake inhibitor class.

On Tuesday shares of Sun Pharmaceutical were down by 1.88 per cent at Rs 972 on BSE.

On Tuesday shares of Wyeth shares were down by 0.85 per cent at Rs 474.05 on BSE.

http://economictimes.indiatimes.com/Pharmaceuticals/Wyeth_not_to_sue_Sun_Pharma_over_generic_Venlafaxine/articleshow/2465909.cms

With Thaks from the Economic Times

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Slokas now to be patented

New Delhi: The Union Government is launching a project to translate ancient Sanskrit scriptures into five foreign languages. These will be sent to patent offices globally to prevent any commercial misuse of traditional Indian knowledge in the U.S. and other countries.
The Department of Ayurveda, Yoga and Naturopathy, Unani, Siddha and Homoeopathy (AYUSH) has engaged institutes such as the Morarji Desai National Institute of Yoga and Kewal Dham of Pune to translate Sanskrit slokas that describe yogic asanas into English, French and German among other languages.
"Traditional Knowledge Resource Classification (TKRC) software, being used for translation, will include video footage demonstrating yoga postures," an official source said.
In the first phase, to be completed by December, work on 150 asanas will be completed. The plan is to cover 1,500 commonly used kriyas and asanas. — PTI

http://www.hindu.com/2007/06/07/stories/2007060702882200.htm

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