IPRMENTLAW WEEKLY HIGHLIGHTS (JULY 15-21)

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DELHI HC PULLS UP PRASAR BHARTI FOR INFRINGING DISH TV TRADEMARK

The Delhi High Court, on July 16, restrained Prasar Bharati from using the trademark ‘Dish’ of Dish TV for its Direct To Home (DTH) service.

The plaintiff had instituted this suit for permanent injunction restraining the defendant from infringing the trade mark “DISHTV” of the plaintiff and from passing off the defendant’ s services as that of the plaintiff by adoption of the name / mark “FREE DISH” and for ancillary reliefs.

The defendant argued that “DISH”  being generic and/or publici juris and/or common to the trade and the plaintiff, therefore, notwithstanding holding a registered mark, being not entitled to prevent the defendant from use thereof. The said defence is based on Section 9 of the Trade Marks Act titled “Absolute Grounds for Refusal of Registration”, which prescribes that trade marks which are devoid of any distinctive character and incapable of distinguishing the good or services of one person from those of another person and which consist exclusively of marks or indications which serve in trade to designate the kind, quality of the service or which have become customary in the language practiced in the trade, shall not be registered.

The Court however noted that “DISHTV”, notwithstanding the said provision, stands registered, as of today, for the last 16 years and none objected to registration thereof or has till date sought removal of the registration. Further that the Court was not empowered to remove the mark from the register and the power to do the same vests exclusively in the Registrar of Trade Marks or in the Intellectual Property Appellate Board (IPAB), under Section 47 of the Trade Marks Act.

As regards the defendant’s contention regarding public interest the Court observed that , “it cannot be lost sight of that the defendant, after ten years changed the name of its service from DD Direct+ to DD Free Dish. It is not the case of the defendant that in doing so, any such consequence followed. The defendant has also not disclosed the need for such change. There is no reason for the defendant to now, upon being asked to make the change instead of affecting the same voluntarily, suspect any such harm to the public. Moreover, the said aspect can be taken care of by providing sufficient time to the defendant to make its customers / subscribers aware of the change including on its own telecast.”

While passing the injunction, Justice Rajiv Sahai Endlaw noted “Rather, I am dismayed that the defendant, a public sector enterprise, indulged in using another‟s trade mark and in spite of the plaintiff objecting thereto, refused to act reasonably. The same is not expected of a public sector enterprise which according to the proclaimed litigation policy of the Government is not to be indulged in. It is at least now expected that the officials responsible for conduct of the business of the defendant will bestow attention thereto and take a call, whether it is worthwhile to contest this litigation, obviously at the cost of the exchequer.”

DELHI HIGH COURT GRANTS INJUNCTION AGAINST LEE PHARMACEUTICALS IN A COPYRIGHT INFRINGEMENT SUIT FILED BY MANKIND PHARMA

The Delhi High Court vide order dated July 12, 2019 restrained Lee Pharmaceuticals from using the content of the website of Mankind Pharma.

Mankind Pharma had filed a suit for a permanent injunction restraining Lee Pharmaceuticals from using the content of its website. Mankind Pharma has various domain names registered in its name with the mark ‘Mankind’, with the main website being www.mankindpharma.com. The website by Lee Pharmaceuticals is allegedly a copy of Mankind Pharma’s website.

“…the Defendant is also restrained from passing off its business as being affiliated to that of the Plaintiff,” said the order, which was passed on 12 July by a single judge bench of Justice Prathiba M. Singh.

The pictures on Lee Pharma’s website shows that “defendant has unabashedly copied the Plaintiff’s website and its contents despite not having any rights in the same whatsoever. The Defendant, being in the same field as the Plaintiff i.e. pharmaceuticals and considering the nature of the online website use by customers and other members of the general public, there is bound to be deception”, the order said.

TIKTOK OWNER BYTEDANCE TO ESTABLISH LOCAL DATA CENTRES FOR INDIAN USERS

Chinese Internet technology company, Bytedance, has announced plans to establish local data centres in India. Bytedance is the company behind popular social media platforms TikTok and Helo. The company was recently issued a notice for these apps, by the Indian government, for allegedly misusing the platforms for “anti-national activities”. The apps were warned that they might face a ban if they fail to submit appropriate responses to the questions by July 22.

The move would be in line with the Indian government’s efforts towards data localisation for user data gathered from India by various companies. The company also said that it has so far been storing Indian users’ data in third party servers located in the United States (US) and Singapore.

MIB SEEKS AFFIDAVIT FROM MSOS REGARDING MANDATORY CARRIAGE OF DD CHANNELS

The Information & Broadcasting Ministry has sought affidavits from existing multi system operators (MSOs) as well as fresh applicants of MSO licences that they are carrying all 24 DD Channels, besides Lok Sabha and Rajya Sabha TV channels, on their network.

The affidavit will have to be submitted within one month from the issue of notice. The ministry stated that the carriage of DD channels is mandatory in view of the contribution of Doordarshan towards dissemination of accurate information about policies and programmes of the government, acceleration of socio-economic change, promotion of national integration and stimulation of scientific temper.

However, the ministry noticed that the same is not being done by several cable operators, which is in contravention of existing rules.

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