Tag: #Copyright

INTRODUCTION

One of the most rewarding aspects of media outlets is reflected in video games. Every year, consumers spend over $25 billion to enjoy the interactions that teams of writers, organizers, and programmers have. With so much in doubt, it makes sense for the companies that create these video games to want to provide the best legal protection for their products. Copyright laws give video game developers the judicious right to reproduce, market, and turn off products based on their game’s code, characters, images, and exchange. Understanding the material legal structure is necessary given the ongoing, dynamic growth of the video game industry and the growing revenue it generates, which is now equal to the size of the film industry and outpacing the music industry in terms of overall revenue.

This article focuses on examining the relevant national legislation in order to provide video game engineers with information on the main current legitimate openings for the security of their rights and interests during the creation of a video game and its subsequent use and distribution. The video game market is worth many billions of dollars. As of 2018, the global gaming market was worth $137.9 billion, with roughly half of all revenues coming from mobile devices. It’s also important to note that after India’s national lockdown began, the founder of Ludo King reported a jump in active users from 13 million to 50 million. But as video games grow in popularity, there is also an increase in issues with infringement in this industry, and there are many different aspects of copyright that need to be taken into account in this regard.

They consist of songs, scripts for movies, stories, videos, artwork, and characters. Video games are therefore not made as single, straightforward works but rather as a collection of various elements, each of which can be copyrighted provided it reaches a certain level of originality and inventiveness (e.g., the characters in a video game, its soundtrack, settings, audio-visual parts, etc.). A video game’s main features, such as its plot, characters, audio-visuals, graphics, and some of the code, may be protected under various categories of “works” as defined by section 14 of the Copyright Act of 1957. Since the numerous categories of works protected by copyright are outlined in Article 2 of the Berne Convention for the Protection of Literary and Artistic Works, video games may also be covered by this provision.

BACKGROUND OF PUBG VS. FORTNITE CASE

The makers of Player Unknown’s Battlegrounds (“PUBG”), Bluehole, sued Epic Games, the developer of Fortnite, in South Korea at the start of 2018 for copyright infringement. Because some elements of the new Fortnite resembled those of PUBG, Bluehole claimed that Epic Games was responsible for copyright infringement. It was asserted that without contributing anything new to the genre, Fortnite simply duplicates the gameplay of PUBG. The genre in question is battle royale, a game mode based on a Japanese movie of the same name, in which a group of teenagers is coerced into a deathmatch by the government. Midway through the year, Bluehole abandoned its lawsuit against Epic Games. On the other hand, the dispute between PUBG and Fortnite brought up a crucial issue: can a genre be copyrighted?

COPYRIGHT CONTENTS IN A GAME

A video game is made up of a variety of elements that combine to create the experience we as players have. All of the elements are contained in the software coding that creates a game’s user interface. Although copyright is already granted for software coding, other works created for video games, such as character designs, storylines, and scripts, may also be protected by copyright. No theme or concept depicted in a game can be copyrighted, as this is the general rule of copyright, which states that only its expression in literary, artistic, or musical form can invoke copyright protection. However, contents that are part of the video game are copyrightable. This is crucial to comprehend because, while a soldier character from a game based on World War I could be copyrighted, neither another soldier character from a game nor a game based on World War II could be restricted.

CASE LAWS

The Supreme Court of India ruled in the case of RG Anand v. Deluxe Films¹ that the film could not be held to have violated the screenplay of the play. The justification offered was that although the concepts behind the script and the movie were the same, how they were expressed was very different. Therefore, it cannot be regarded as a copyright infraction. In the case of Mansoob Haider v. Yashraj Films², the Bombay High Court reiterated that ideas are not protected by copyright. The similarity of ideas does not indicate a copyright violation because after removing differences, the remaining idea is not protected by the law.

The landmark American case Baker v. Selden³ established the idea-expression divide. Selden asserted ownership of the copyright for the fundamental accounting method he created and used in the book. Selden wanted copyright for his ideas, but he never asked for it for the first sentence of the book. The Supreme Court ruled that copyright can only be granted to the expressions and not the underlying theory, and that it cannot be extended to the “ideas” and “art” used in the book.

GENERAL RULE OF COPYRIGHT PROTECTION

It should be noted that gameplay refers to the combination of game mechanics, rules, objectives, impediments, rewards, and punishments used in a particular video game and made visible through the various media shows produced when the player interacts with the game. It becomes essential to find a reasonable balance between the right of initiation and the continued advancement of masterpieces by granting reasonable copyright protection against encroachments from gameplay. An idea, theme, or concept depicted in a game cannot be protected by copyright, but the contents that are included in the video game can.

The idea versus expression doctrine states that only the literary, artistic, or musical expression of an idea, theme, or concept may be protected by copyright. The genre of a video game is an idea, not an expression, and copyright only safeguards the original manifestation of an idea—not the idea itself. We would be restricted to a small number of first-person shooters, role-playing games, racing games, and so forth if genres could be copyrighted, which would be restrictive for both developers and players. By granting a monopoly to the copyright holder, asserting copyright over ideas will further disrupt the market’s flow because only a small number of people will have total control.

ANALYSIS OF PUBG v FORTNITE

Returning to the PUBG vs. Fortnite debate, the only criticism levelled at Fortnite was that it was created by Epic Games as a Battle Royale game. The concept of the Battle Royale genre is not new. In reality, it is based on the renowned Japanese movie “Battle Royale,” in which a despotic government imprisons a large number of high school students on an island, arms them, and orders them to kill one another until there is only one left. Even though PUBG’s developers may have released their battle royale video game before Epic, they cannot stop Epic or anyone else from developing their own interpretation of the idea, provided that there aren’t too many similarities to clone PUBG’s distinctive expression. The reason why Epic’s take on the genre differs so much from Bluehole’s is because of the company’s unique perspective on it.

The video games Fortnite and PUBG are very dissimilar. Both games have distinctive visual styles. Based on screenshots from PUBG, it might be challenging to tell it apart from other gritty, realistic shooting games because of its appearance. The colors in the game are typically earthy tones, the weapons look almost exactly like their real-life counterparts, and the clothing you can find by looting buildings is roughly what you’d expect to find in a hastily abandoned home. The realistic, battle-worn appearance is ideal because the game is meant to be intense. On the other hand, Fortnite has a very stylized appearance that embraces its computer-generated nature rather than trying to hide it.

In Epic Games in-house, you’ll find dozens of employees working on everything from the cross-platform functionality to the massive amount of artwork needed to make it all look as good as it does. The design is entirely cartoon-like, the colors are outrageously vivid, and the weaponry is absurdly overdone. While PUBG is an open battleground with 100 players hosted at once on a single server, with players collecting weapons, medical aid, driving cars, and in-game bombings with game restrictions, Fortnite includes a building mechanic with resource collection to build forts, bridges, and other structures to protect the player from bullets. These gameplay differences set apart both games and do not, therefore, violate the copyright of the PUBG developers.

CONCLUSION

Copyright infringement can occur if the overall idea of the game is expressed in too many similar ways, especially if there are other ways to express the same idea. Most creators are able to minimize their copying of a specific genre’s concepts and rules while also adding their own innovative expressive features. In other words, you could be copying the gameplay and idea, but you wouldn’t be liable for copyright infringement because it would be considered your expression of that genre, as you are replicating other games within the same genre but adding your twist on it, such as adding artistic graphic elements and creating unique characters that set the game apart.

CITATIONS

1. AIR 1978 SC 1613.

2. 2014 (59) PTC 292.

3. 101 U.S. 99 (1879).

This article is written by Sanskar Garg, a last year student of School of Law, Devi Ahilya University, Indore.

-Report by Avinash Pandey

Copyright infringement (also known as illegal downloading) is the use of certain information or creation, without the permission of the owner, where authorization of the owner of the information is considered necessary. In simple words, it is encroaching upon such unique privileges given to the copyright owner, including the right to reproduce, disseminate, showcase, or undertake the copyrighted material, or to prepare derivative works.

SONY PICTURES NETWORK INDIA Pvt. Ltd. Vs WWW.sportssala.tv and Ors

Sony Studios filed a federal lawsuit against a number of individuals in this matter, chiefly seeking a permanent injunction against reproducing, making accessible, publishing, streaming, etc, sports events of India’s games. Even during the course of litigation, Sony Studios sought an interlocutory order and sought comparable remedies. The Judge issued Sony Studios an order prohibiting webpages, encompassing redirection, clones, and alpha-numeric variants. A restraining order also was issued targeting rogue websites that replicate, transmit, give access, transmit to the community, or redistribute sports events.

The Tribunal also issued an order directing ISPs to prohibit the aforementioned and other pirate networks, as well as directing the Government of India to issue suitable orders to minimize violation of Sony Pictures’ copyrights during the events.

The preliminary injunction also applied to MSOs and broadband providers, and regional inspectors were established to oversee and enforce the Court’s instructions. The Judge’s rulings principally encompass Sony Pictures’ copyrights, and so by inference allow only reasonable usage of the material related to the cricket matches involving India and England/Sri Lanka.

KNIT PRO INTERNATIONAL Vs STATE OF NCT OF DELHI

In this instance, the appellant submitted an application with the chief metropolitan magistrate for the lodging of charges against the defendant for violations of Sections 51, 63, and 64 of the Copyright Act, as well as Section 420 of the Indian Penal Code. Considering the petition, instructions were given to the competent officer to record the FIR in accordance with the applicable legal regulations. Following that, the defendant filed a writ petition with the Delhi High Court, requesting that the court proceedings be quashed, primarily on the grounds that the infraction under Section 63 of the Copyright Act would not be cognizable or bailable crime. The High Court allowed the writ petition and ordered the costs to be recorded against the plaintiffs.

Afterward, the appellant decided to contend this in front of the apex court and stated that the High Court had committed a huge mistake by observing that the offence punishable under section 63 of the Copyright Act is a non-cognizable offense and it is not part of the first schedule of the Cr.P.C. The respondent however contended that the decision of the High Court was correct and the offence under section 63 of the Copyright Act is indeed considered a non-cognizable offence.

The main issue that was raised here was whether section 63 of the Copyright Act and the offence committed by violating it is a cognizable offence or a non-cognizable offence. At the same time reference was made to the High court’s decision on whether section 63 of the Copyright Act can be considered a part of the first schedule of the Cr.P.C. The apex court in its judgment had explained section 63 of the Copyright Act and it provides for the punishment that is awarded to any person who had violated the said section.

In its final judgment, the Supreme Court held that section 63 of the Copyright Act is indeed a cognizable and non-bailable offence and therefore the judgment and the order passed by the High Court are contrary to the views of the Supreme Court. The order was set aside and the Supreme Court ordered the criminal proceedings to start against the respondents in this case for the violation of section 63 and section 64 of the Copyright Act in accordance with the law by treating them as cognizable and non-bailable offences.

Intellectual property rights play an important role in a country’s development. Every country’s intellectual property legislation is distinct. The tight implementation of the IPR role contributes significantly to economic growth in many industrialized countries. Intellectual property rights encourage innovation, which in turn results in economic progress. Every firm in the world today is because of innovation. How important the IPR laws are has been recognized in the modern era. In the present day, it is not just innovation, but also the name that matters. The name has a lot of goodness affixed to it. Brand names are sold by some businesses for a large sum of money. There is a significant impact of Intellectual property rights on a country’s economic development. In terms of economic development, the IPR can play both a detrimental and a good role.

INTRODUCTION

Intellectual property is defined as property created by the human mind and intellect. Intellectual property, as well as the rights associated with it, is becoming increasingly valuable. Both the state and the national economies rely heavily on intellectual property (IP). Hundreds of businesses rely on the proper protection of their patents, copyrights, and trademarks, while the consumers utilize IP to assure they are buying safe, guaranteed products. Intellectual property rights, we feel, are critical to protecting both at home and abroad. The legal rights are granted to the person who has invented or created something new and unique that has never been done before and the legal rights are granted to the person or his delegate for a set period of time to fully exploit that particular idea.

Owners of intellectual property are granted certain rights that allow them to enjoy their property without interruption and prevent others from utilizing it. These rights, known as “monopoly rights of exploitation”, are limited in geographical extent, time, and scope.

And because of this, there is a direct and significant impact of intellectual property rights on industry and business since IPR owners can defend their rights and prevent the manufacture, use, or sale of a product to the general public. IP protection promotes commercial enterprises to pick creative works for exploitation by encouraging distribution, publication, and disclosure of their production to the public rather than keeping it a secret.

INTELLECTUAL PROPERTY RIGHTS IN INDIA

One of the UK’s most important international markets is India. If you plan to conduct business in India, or if you already do business there, you must understand how to utilize, protect, and enforce your rights to intellectual property (IP) that your company or you own. This guide covers the basics of intellectual property and how to use these propositions in the Indian market. It explains how to deal with IP infringement in this country, gives guidance on how to deal with it efficiently, and provides links to more resources.

Copyright protects published or written works such as songs, books, films, artistic works, and web content; Patents protect commercial inventions, such as a new business product or process; Designs protect designs, such as drawings or computer models; and Trademarks protect signs, symbols, logos, words, or sounds that distinguish your products and services from those of your competitors.

It is possible to have a registered or unregistered IP address.
You instantly acquire legal rights to your creation if your IP is unregistered. Unregistered design rights, copyright, database rights, common law trademarks, confidential information, and commercial secrets are all examples of unregistered IP.

Application is to be given to an authority, like the Intellectual Property Office located in the United Kingdom, to have your rights recognized if you have registered IP. Others will be able to exploit one’s property if it’s not done so.
India has, as a fact, been a member of the World Trade Organization (WTO) since 1995. WTO members are required to provide some form of protection of intellectual property in their national legislation. This implies that if you do business with India, you’ll notice certain parallels between enforcement procedures and local IP law and those in place in the United Kingdom. Patents, registered design rights, and registered trademarks can be taken as examples of registered intellectual property. Copyright can also be registered.

India has signed the Berne Convention on Copyright. However, registering your copyright may be beneficial in proving ownership in the event of criminal proceedings against anyone who fringes this right.
However, in most circumstances, registration is not required to pursue a copyright infringement suit in India.
The Copyright Office accepts registrations in person or through a representative. Since 2016, India’s Ministry of Commerce and Industry has been in charge of copyright policy. All IPRs (DIPP) are now being managed by the Department of Industrial Property and Promotion. In India, if there is any piracy of films, music, games, and software on the internet, as well as unauthorized copying of physical books, is a problem.

The Patents Act of 1970, the Patent Rules of 2003, and the Patent Amendment Rules of 2016 govern the patent law in India. just as how they are in the United Kingdom, utility model patents are not permitted in India. The Patent Registrar is the governing authority for patents and is part of India’s Ministry of Commerce and Industry’s Controller General of Patents, Designs, and Trade Marks. For 20 years, Patents are valid from the filing date of the application, with an annual renewal charge. The ‘first to file’ concept governs Indian patent law, which means that if are two people who are applying for a patent on the same invention, the first to file will be granted the patent.

The Designs Act of 2000 and the Designs Rules of 2001 are the legislation that governs designs. For ten years, Designs are valid and can be renewed for another five years.

The Trade Marks Act of 1999 and the Trade Marks Rules of 2002 and 2017 make up India’s trademark legislation.
The Controller General of Patents, Designs, and Trade Marks is the regulatory authority for patents.

The Department of Industrial Policy and Promotion (DIPP) is a government agency tasked with promoting. Now, the police have additional authority in executing the law.

Trademark law, includes the right to examine premises and confiscate counterfeit items without a search warrant, However, these abilities are limited by the necessity that the police obtain a Trade Mark. Before acting, obtain the Registrar’s opinion on the mark’s registration, adding to the wait time and causing problems; resulting in the removal or sale of counterfeit goods.

In India, trade names are also a type of trademark, hence those who want to trade under their own title/surname are under protection, notwithstanding the existence of other trade names. Because of the common practice of ‘cybersquatting,’ which involves third parties registering domain names for well-known marks in order to sell them to the original rights holders, it is recommended that rights holders register their domain names as trademarks in India as soon as feasible. To complete the registration process, it can take up to two years. In India, a trademark is valid for ten years and can be renewed indefinitely for another ten years.

RELATIONSHIP BETWEEN INTELLECTUAL PROPERTY RIGHTS AND ECONOMY

In the economy, the intellectual property serves the following functions:
To give the creator exclusive rights and to preserve the creator’s interests, as well as to stimulate investment in information development and research;
Prohibit competitors or anyone else from abusing or misusing the property if the creator’s authorization has not been given; and#\
To develop a market for any kind of invention in order so that can be put to good use and inspire others to innovate and create.

It is now more cost-effective to incorporate fresh creations and ideas because they have a direct impact on the product’s material cost. As a result, it is critical to keep up with technological advancements and innovation. If there is a good IPR regulation in place to safeguard people’s interests, it will deter others from exploiting the same. Enforcement of good law matters just the same as its existence. It’s pointless to have strict legislation if it can’t be efficiently enforced. Loopholes and weak legislation can be abused and exploited, resulting in a lack of innovation. Individuals must be discouraged from exploiting intellectual property under IPR law.

IPR now gives the property’s owner or creator exclusive rights. There is complete control over the fair market value by the owner and he can sell them to anyone. A healthy return to developers will drive him and others to come up with new ideas, and we can all benefit from it. This right, however, can be exploited by the owner, who can charge far more than the marginal cost. This privileged status has the potential to create a market monopoly. Monopoly leads to unfairness and an imbalance in consumer and production markets. In the legal system, there are protections for intellectual property rights and antitrust. Competition plays a vital function in the market since it keeps the market in check and influences consumer happiness.

There are a few market giants who control the entire market. They have the resources and capacity to manipulate and control the market. The market is made up of consumers, producers, and developers, and IPR offers developers more rights and protection, which helps to keep the competition going. In the market, there should be a balance between the two. IPR can be used as an instrument to keep the market in check. IPR not only offers the owner exclusive rights, but it also allows him the authority to transfer his right of use to others, allowing him to permit anyone to use it in order for the exchange of money.

The positive aspect of this is that; a country like India, which is one of the world’s most developing economies, must concentrate on increasing market productivity. India has a long history of providing exceptional services to the entire world. Productivity can be boosted with better technology and processes. Innovation demands investment, and it demanded a sizable sum of money. These are costly, but they play a vital part in the investment. We may learn from industrialized countries like the United States and Japan, where the development rate grew fivefold when intellectual property rules were implemented.

There are now several ideas claiming that IPR has a negative impact on the economy. A trademark infringement in the 1980s, in China, had a severe impact on Chinese innovative businesses. Local businesses began to take advantage of the well-known corporation by creating counterfeit products and releasing them into the market.

Copyright infringements have a similar effect. In countries with lax copyright rules, pirate enterprises begin to take advantage of the market and the law. Even if low-quality or pirated versions are accessible on the market, technical advancement would be hampered, which will have a direct impact on the economy. Producers and consumers should both be enticed to invest in the market by IPR laws. This also ensures quality, which is critical for protecting customers’ interests. Customers may be at risk from counterfeit or imitation food products, beverages, pharmaceuticals, and cosmetics.

After the adoption of Trade-Related Intellectual Property Rights (“TRIPS”), the market began to shift. The act began by providing operating space and chances for businesses to innovate. In recent years, the private sector has begun to invest in development and research. In India, the number of patents filed has increased since TRIPS was implemented.

However, the major disadvantage of IPR is that it sometimes prevents technology from being used in the most appropriate way. The person holding the rights can occasionally abuse her or his position. They can charge whatever they want, and their innovation is protected by IPR, so it can’t be used by competitors. The most crucial aspect of an economy’s development is competition. The essence of competition maintains a check and balance on both pricing and product quality. On the other hand, IPR laws are anti-competitive. IPR legislation creates a market monopoly. It is pro-monopoly. Copyright, trademarks, and patents are all examples of laws that make it difficult for a competitor to use an idea.

Competition forces producers to consider the benefit and contentment of the consumer because if there is dissatisfaction, he or she will seek out other market competitors. The manufacturer can set any price he wants, and this has a direct impact on the market and the consumer. It would be due to the concept of the law of supply and demand, which defined that if the price is high, demand will be low. When, in the market, there is a monopoly however, this legislation does not apply. The consumer will have no other choice but to purchase the product at the producer’s set price. The producer is constrained to charge not exceeding the marginal cost due to competition.

CONCLUSION

Law is created for society and it’s not the other way around, every legislation is enacted for the improvement and benefit of society. Every law has both beneficial and negative consequences for society. Article 31 of the TRIPS Agreement allows for compulsory licenses to be granted in the following circumstances:

Anti-competitive practices in the benefit of public health in the event of a national emergency. As a result, the Intellectual Property Rights Act does not make the market inflexible while also keeping it dynamic in India.

This article is written by Tingjin Marak, a BA/LLB student at Ajeenkya DY Patil University Pune.

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.

1. Bajaj Auto Ltd. v.TVS Motors Comp. Ltd. (2010) Madras HC³

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) SC⁴

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 HC⁵

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 HC⁶

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 HC⁷

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 HC⁸

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 HC⁹

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 HC¹⁰

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 HC¹¹

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 HC¹²

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.

References

1. Page 281 Book: Studies in Jurisprudence and Legal Theory by Dr. N. V. Paranjape
2. https://www.wipo.int/about-ip/en/
3. https://indiankanoon.org/doc/248352/
4. https://indiankanoon.org/doc/165776436/
5. https://indiankanoon.org/doc/123231822/
6. https://indiankanoon.org/doc/28519340/
7. https://indiankanoon.org/doc/1741869/
8. https://indiankanoon.org/doc/99626708/
9. https://www.casemine.com/judgement/in/5e55cdc49fca193984fd7305
10. https://indiankanoon.org/doc/79649288/
11. https://indiankanoon.org/doc/101671569/
12. https://indiankanoon.org/doc/83405343/

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