IPRMENTLAW WEEKLY HIGHLIGHTS (JULY 8-14)

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DELHI HIGH COURT APPLIES DOCTRINE OF NECESSITY, DIRECTS IPAB TO HEAR URGENT MATTERS EVEN IN THE ABSENCE OF TECHNICAL MEMBERS

The Delhi High Court in the matter of Mylan Laboratories Limited vs Union of India vide judgement dated July 8, 2019 has held that the doctrine of necessity has to be invoked in relation to IPAB being able to take up urgent matters even in the absence of a technical member. The Court observed:

“35. This Court is of the view that the doctrine of necessity has to be invoked in the present case. The legislative intent is of the continuity of IPAB and not its cessation because of a vacancy in its technical membership. If the post of the Technical Member is lying vacant, IPAB can proceed to hear the urgent matters and the orders passed would not suffer invalidity on the ground of lack of Coram.

  1. Applying the doctrine of necessity and following the principles laid down in Election Commission of India (supra), Kwality Restaurant (supra), Talluri Srinivas (supra) and Bharat Bijlee Limited (supra), this Court holds that the Chairman, IPAB and the Technical Member (Plant Varieties Protection) are competent to hear the urgent matters relating to the Patents, Trade Marks and Copyright till the vacancies of other Technical Members are filled up and the orders passed would not suffer invalidity on the ground of lack of Coram.

The Court also observed that it is pained to note that no Technical Member (Copyright) has been appointed till date. The post of Technical Member (Patents) is lying vacant since 04th May, 2016 whereas the post of Technical Member (Trade Marks) is lying vacant since 05th December, 2018. IPAB has only one Technical Member relating to Plant Varieties Protection. About 3935 cases are pending adjudication before IPAB across all its Benches. However, cases relating to trademarks, copyrights and patents are not being taken up as there is no Technical Member relating to those specialties. The term of a patent is only 20 years and in many cases, due to lack of Coram, the patents have expired and the matters have become infructuous and rights of parties have been severely prejudiced.

The Court also relied on the Delhi HC’s decision in the matter of Radio Next Webcastion Pvt. Ltd. v. Union of India, (2018) 254 DLT 660 wherein it was held that the absence of Member Technical (Copyright), does not in any manner impinge upon the jurisdiction of the Appellate Board as constituted under Section 83 of the Trade Marks Act and a conjoint reading of Section 11 of the Copyright Act and Section 83 of the Trade Marks Act clearly indicates that the Appellate Board as constituted under Section 83 of the Trade Marks Act would also have the jurisdiction to perform the functions under the Copyright Act as well.

YASH RAJ FILMS PVT LTD VS SRI SAI GANESH PRODUCTIONS & ORS- DELHI HIGH COURT GRANTS INJUNCTION IN FAVOUR OF YRF IN A COPYRIGHT INFRINGEMENT SUIT

The Delhi High Court on July 8, granted an injunction in favour of YRF restraining the defendant from infringing the Plaintiff’s film “BAND BAAJA BAARAAT” by its dubbing and release in Tamil as a cinematograph film titled “JABARDASTH”.  The Court reiterated its ruling in the case of MRF Limited vs Metro Tyres in which the court had  held that a film is recognised as being more or greater than the sum of its parts and copyright subsists in a “cinematograph film” as a work independent of underlying works that come together to constitute it. Further, though the expression “original” is missing in Section 13(1)(b) of the Copyright Act, 1957, yet the requirement of originality or intellectual creation is brought in through Sections 13(3)(a) and 2(d). Further, the expression “to make a copy of the film” in Section 14(d)(i) does not mean just to make a physical copy of the film by a process of duplication. Further, as the scope of protection of a film is at par with other original works, the test laid down in R.G. Anand v. M/s Deluxe Films and Ors. (1978) 4 SCC 118 would apply. Accordingly, the Court  compared “the substance, the foundation, the kernel” of the two films.

After examining the two films, the Court was of the view that the defendants have blatantly copied the fundamental, essential and distinctive features as well as forms and expression of the plaintiff’s film on purpose and consequently, have infringed plaintiff’s copyright in the film “BAND BAJA BARAT”. Furthermore, the Court noted that the Defendant had no real prospect of defending its claim, and the Plaintiff’s argument had gone unrebutted.

 

DELHI HIGH COURT DISMISSES PLEA TO QUASH 6AM-10PM BAN ON CONDOM ADVERTISEMENTS ON TV-

The Delhi High Court on July 8 dismissed a plea seeking quashing of the Centre’s notification banning telecast of condom advertisements between 6.00 am to 10.00 pm, saying it was not going to interfere with a “conscious policy decision” of the government. A bench of Chief Justice D N Patel and Justice C Hari Shankar said the court will be “extremely slow in interfering with a policy of the government” unless it was violating the Constitution or any other law. The court further said it has “no expert knowledge” about the issue and there was “no violation of the Constitution or any other law in force” by the government’s decision. “It is a conscious policy decision of the government. We see no reason to interfere with it,” the bench said, dismissing the petition challenging the Centre’s December 11, 2017 notification by which condom advertisements were banned between 6.00 am to 10.00 pm.

The petitioner, Sarita Barpanda had stated that the ban on the advertisement is unjust and was done without any legal provision as the Cable Television Network Rules, 1994. Barpanda also suggested setting up of a Committee to review such advertisements on case-to- case basis and make a differentiation between good and bad advertisements.

SUPREME COURT DISMISSES PETITION FILED BY BRAHMAN SAMAJ TO BAN THE FILM ‘ARTICLE 15’

The Supreme Court on July 8 dismissed the petition filed by Brahman Samaj of India to ban the movie ‘Article 15’. The petitioner had claimed that the title of film used in commercial manner violates the Emblems and Names (Prevention of Improper Use) Act 1950 and will create misconceptions in the mind of people and create caste hatred. The bench headed by Justice S.A. Bobde said that the petitioner can approach the ‘appropriate authority’ with their grievances against the name and content of the movie.

 

DELHI HIGH COURT

 

 

DELHI HC RESTRAINS E-COMMERCE PLATFORMS LIKE AMAZON, 1MG & FLIPKART FROM SELLING DIRECT SELLERS’ PRODUCTS WITHOUT CONSENT-

The Delhi High Court in a 225 pager judgement passed on July 8, 2019 has restrained e-commerce platforms like Amazon, 1MG, Flipkart from selling products of Amway, Modicare and Oriflame without their prior consent.

The Court dealt with four main issues under the judgement:

(i) Whether the Direct Selling Guidelines, 2016 are valid and binding on the Defendants and if so, to what extent?

The Court held  “At the interim stage, the fact that the Guidelines have been in operation since 2016, the same having been repeatedly notified to ecommerce platforms, who have chosen not to challenge them and the broader public/consumer interest behind the said Guidelines sought to be safeguarded, persuade this Court to hold that they are binding in nature as they do not impinge on any Fundamental Rights of either the sellers or the platforms. Moreover, the Guidelines fully regulate the conduct of business by Direct Sellers who are bound by them. If platforms are permitted to violate the Guidelines, the Direct Selling Entities will be left with no remedies to enforce a binding law. The Guidelines have been duly issued and have been authenticated by a gazette notification, as required. It is, accordingly, held that the Direct Selling Guidelines are binding on ecommerce platforms and the sellers on the said platforms.

The effect of the said guidelines being binding, would be, that the sellers/platforms would have to take consent of the Direct Selling Entities to offer, display and sell the products of Direct Selling Entities on their platforms, in compliance with clause 7(6) of the Guidelines.”

(ii) Whether the sale of the Plaintiffs‟ products on e-commerce platforms violates the Plaintiffs’ trademark rights or constitutes misrepresentation, passing off and results in dilution and tarnishes the goodwill and reputation of the Plaintiffs‟ brand?

The Court held “On a totality of the facts, it is held that use of the mark by the sellers and by the platforms is violative of the Plaintiffs‟ trademark rights and the Defendants‟ are not entitled to the defence under Section 30. The manner of sale on the e-commerce platforms also constitutes passing off, misrepresentation and dilution/tarnishment of the Plaintiffs‟ marks, products and businesses.”

(iii) Whether the e-commerce platforms are “intermediaries” and are entitled to the protection of the safe harbour provision under Section 79 of the Information Technology Act and the Intermediary Guidelines of 2011?

The Court held “Thus, in order for the platforms to continue to enjoy the status of intermediaries, subject to adjudication at trial, the due diligence requirements would have to be met and complied with, as per the Platforms‟ own policies, and as per the Intermediary Guidelines, 2011. Non-compliance with the Platforms‟ own policies would take them out of the ambit of the safe harbour.”

(iv) Whether e-commerce platforms such as Amazon, Snapdeal, Flipkart, 1MG, and Healthkart are guilty of tortious interference with the contractual relationship of the Plaintiffs with their distributors/direct sellers?

The Court held “In the world of commerce and trade, e-commerce is here to stay. It has changed the dynamics of the conduct of businesses. The companies and entities, which run e-commerce platforms, have a greater obligation to maintain the sanctity of contracts, owing to the sheer magnitude and size of their operations. When an e-commerce platform is notified of existing contracts and violation of the same on its platform, the least that the platform would have to do would be to ensure that it is not a party, which encourages or induces a breach. The manner, in which e-commerce platforms operate, makes it extremely convenient and easy for ABOs/distributors/direct sellers to merely procure the products from the Plaintiffs and defeat the purpose of the contractual obligations by selling in the grey market to unidentified persons, who may, thereafter, put them in the e-commerce stream, without any quality controls. In this manner, such ABOs/distributors/sellers may sell outdated products, expired products, damaged products and hide behind the cloak of the platforms themselves. Since none of the platforms, except 1MG, to an extent, are even disclosing the complete details of the sellers, they offer a comfortable refuge for parties breaching their contracts with the Plaintiffs. This refuge by itself constitutes inducement. The preservation and maintenance of the integrity of commercial contracts is a necessity in the modern day world. If society is permitted to induce or encourage breach of commercial contracts and the aggrieved persons are left only with their remedies of specific performance or damages by the persons breaching the contract, it would result in complete dissipation of contractual integrity. The legal system has to work towards preservation and compliance with contractual terms and not encourage violation of the same.

The minimum conduct expected of the platforms is adherence to their own policies, which they have failed to do in the present case. Thus, this Court has no hesitation in holding that the continued sale of the Plaintiffs‟ products on the e-commerce platforms, without the consent of the Plaintiffs, results in inducement of breach of contract, and tortious interference with contractual relationships of the Plaintiffs with their distributors.”

(Detailed post to follow soon)

YO YO HONEY SINGH, BHUSHAN KUMAR BOOKED BY PUNJAB POLICE FOR USE OF VULGAR LANGUAGE IN T-SERIES SONG MAKHNA

As per reports, Honey Singh and Bhushan Kumar  have been booked by Punjab Police  in relation to the use of vulgar lyrics against women in the song ‘Makhna’.  Previously, a Complaint was lodged by Punjab Women Commission against the Song for the use of vulgar lyrics. The complaint was registered at the Mataur Police Station in Mohali District.

UP POLICE VISIT SONAKSHI SINHA’S HOUSE IN ALLEGED CHEATING CASE

A team of officials from the Uttar Pradesh Police visited the home of Bollywood actor Sonakshi Sinha in connection with a case of cheating filed against her in Moradabad last year.

An event organiser named Pramod Sharma had filed a complaint against Sonakshi with the police in Moradabad in February 2018. In the complaint, he accused the actress of not turning up for an event in New Delhi at the very last moment after accepting a booking amount of Rs 24 lakhs.

The UP Police, assisted by officials from the Juhu police station, went to Sonakshi Sinha’s home to question her in regard with the allegations. However, senior police officials said that the actor was not at home and the police left after waiting for a few hours.

Sonakshi later took to social media and wrote, “An event organizer who couldn’t live up to his commitment obviously thinks he can make a fast buck by maligning my crystal clear image in the press. There is full cooperation with the authorities from my end for the investigation to be conducted. Would request the media not to fan these bizarre claims of an unscrupulous man.”

 

KANGANA RANAUT SENDS LEGAL NOTICE TO ENTERTAINMENT JOURNALIST GUILD, PCI FOR ‘IMMORAL, UNETHICAL’ SUPPORT

Kangana Ranaut has sent a legal notice to the committee members of Entertainment Journalist Guild and Press Council of India for supporting a journalist, who got involved in a spat with her during her film’s song launch. The legal notice was sent for “wrongful, immoral, unethical and illegal acts of lending support to a journalist Justin Rao, who is accused of indulging in unprofessional and illegal activities.” The notice claims that the EJG or PCI did not have the authority to ban Kangana.  The notice further accuses the said addressees of forming a cartel and being in violation of provisions of the Competition Act.   The notice also mentioned the various provisions of Indian Penal Code (IPC) including Section 503 (Criminal Intimidation), Section 506, Section 499 (defamation), Section 383 (extortion), Section 384, and Section 385. The notice warned the addresses to “rectify all wrongs” done by them within 24 hours and failing to do so will result in an action against them.

 

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