IPRMENTLAW WEEKLY HIGHLIGHTS (APRIL 4- 11)

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1. Tribunal Reforms Ordinance, 2021 takes effect: Appellate authorities in 9 laws replaced with High Courts

The Central Government notified the Tribunals Reforms (Rationalisation And Conditions Of Service) Ordinance, 2021, by which appellate authorities under nine Acts have been done away with and the right to hear appeals under the statute has been conferred directly to the High Courts.

The Bill to the above was already introduced in the Lok Sabha this budget session but it could not be taken up for consideration. The Centre under Article 123 (1) of the Constitution introduced the ordinance with instant effect. The Ordinance promulgated by the President has to be adopted or rejected in the next session of the Parliament within six weeks from the commencement of such session.

The Tribunal Reforms Ordinance abolishes appellate authorities under nine Acts and the right to hear appeals under the statute has been conferred on the High Courts. Further, certain other amendments have also been introduced in the Finance Act, 2017 in provisions relating to the qualifications and tenure of the Chairperson and members of Tribunals.

The amendments brought in by the Ordinance have scrapped the IPAB and has transferred its powers and duties to the High Courts and Commercial Courts. Therefore, all the cases and appeals shall now lie with the relevant Courts. This will discard the extra layer of litigation that the litigants had to go through. The reason behind this action was set forth in the Statement of Objects and Reasons when the Bill was proposed in the Lok Sabha which is that the tribunals have not necessarily led to faster justice delivery and they are also at a considerable expense to the exchequer.

The cases pending before the IPAB will now be transferred to the high courts as per clause 15 (3).

Read Ordinance here.

2. Sunfeast Digestive biscuits packaging not deceptively similar to Nutri Choice Digestive biscuits: Delhi HC

The Delhi HC dismissed the application for interim injunction sought by Britannia Ltd. for or alleged trademark infringement and passing off by ITC’s Sunfeast Farmlite Digestive Biscuits, of Britannia’s NutriChoice Digestive Biscuits.

The court ruled that packaging of ITC’s “Sunfeast Farmlite 5- seed Digestive” was not deceptively similar to that of Britannia’s NutriChoice Digestive Biscuits.

A case was lodged by Britannia Industries Ltd. contending that they have registered a trademark on the packaging of NutriChoice Digestive biscuits earlier on Sep 11, 2020, and they are using the same trademark since 2014, whereas Sunfeast used the different packaging back then for their digestive biscuits.

Britannia Industries further claimed that after that, Sunfest has changed the packaging of its FarmLite 5-Seed Digestive biscuits w.e.f Sep 28, 2020, to be deceptively similar to NutriChoice’s packaging with the intention of encashing Britannia’s goodwill and reputation.

The court held that Sections 29(1) and 29(2) of the Trademark Act, 1999 should be interpreted broadly that the points of dissimilarity keeping in mind that the “points of dissimilarity between marks of rival companies cannot be regarded as irrelevant, or be ignored. The court said that ITC Sunfeast’s FarmLite Digestive Biscuits were not deceptively similar so as to confuse them with Britannia’s NutriChoice Digestive biscuits to a person of average intelligence and imperfect recollection.

The Delhi Court also ruled that a normal reasonable person does not particularly look at only similarities and discard the dissimilarities between the two. The court observed that if similarities can cause deception or confusion, dissimilarities can also prevent such possibility of deception.

The Court also held that the perception, whether in the case of infringement or passing off, is to be that of a person of average intelligence and imperfect recollection- not of an idiot or an amnesiac. Justice C Hari Shankar further noted that the average human mind has not been particularly conditioned to observe only similarities, and overlook dissimilarities.

Observing the fact, the court held that there were enough different features of the NutriChoice and FarmLite, in the sense that apart from the colour of the packaging, the name of the product, the name of the companies was completely different. The court further held that ITC and Britannia are both well reputed, established and well-known companies having their own niche clientele and that the logo of the companies visible on the packet is totally different. Hence the court dismissed the interim injunction application.

Read Order here.

3. Win for YouTube channel TVF: Delhi HC refuses interim relief to MX Player for exclusive rights on 3 TVF shows

A single judge bench of Delhi HC rejected digital media platform MX Player’s (MXP) petition praying to restrain TVF from selling, licensing, exploiting or assigning rights against the shows developed by TVF titled ‘Immature Season 2’, ‘Aspirants Season 1’ (UPSC Season 1) and ‘Flames Season 3’, to any other market player, pursuant to an agreement signed in March 2020 and a sum of $ 310,000 paid as advance consideration.

It was contended that the main agreement has not been signed at all by MXP, despite repeated requests by TVF, and till date MXP had not condescended to return the said contract, duly signed. The platform claimed that it could not do so as the Singapore office of its parent company, MX Media and Entertainment Pvt Ltd, where the company is located and incorporated – was shut due to Covid-19.

The Court ventured to examine the conclusiveness of the main agreement while determining whether there was consensus ad idem at all in the first place for MXP to claim the existence of an agreement between the parties.

The court noted that it was clear that MXP was unwilling to abide by the covenants contained in the original agreement, after perusing the e-mails exchanged between the parties. The situation is further substantiated by failure of MXP to return duly signed contract to TVF, despite repeated requests from the party.

It was contended by MXP that the law does not require a contract, to be enforceable, to be signed by both parties. However, rejecting the contention, the court said that the principle has no application in the facts of the present case, as the issue is not one of want of signatures of both parties, but want of consensus regarding the Agreement.

The court finally noted that clearly there is no consensus ad idem between the petitioner and the respondent. Nor can it be said that the petitioner and the respondent had acted on the basis of the contract. Thus, the petition was accordingly dismissed.

Read here.

4. Plea in Delhi HC seeks constitution of Regulatory Authority for Non-Film songs, music videos

A petition in the nature of PIL was filed before the Delhi HC on the issue of regulation and censorship of non-film songs, music videos and their lyrics, arising from the fact that such content includes the language which are demeaning women and promoting consumption of liquor/drugs etc.

The petition has stated that the Cinematograph Act, 1952 is only applicable to the contents of film and songs, and the content in the form of music and video released by individual artist fall outside the purview of the act and therefore is unregulated.

The Petitioner has sought for an authority like CBFC (Central Board of Film Certification) in place to regulate, censor or review such content which are in the nature of non-film songs and are directly uploaded on the internet or streamed through different applications.

The directions have been sought on Ministry of information and broadcasting for constituting such regulatory authority for certification of such content.

Additionally, the petitioner has sought to direct Ministry of Electronics and Information Technology to constitute a body to screen every such content before they are released on Internet.

5. Google v Oracle: Supreme Court declares Google’s code copying fair

A decade-long battle over copied code in Google’s Android operating system has ended in the US Supreme Court.

In a landmark decision on April 5, the US Supreme Court has ruled that Google did not violate the copyright of software giant Oracle when it used, what are known as Application Programming Interfaces or APIs, of the Java programming language in its Android operating system.

Oracle acquired Java as part of its buy-out of Sun Microsystems in 2010 and within weeks after that, it sued Google for $ 9 billion for what it alleged was the theft by Google and Android, of 11,500 lines of code across 37 Java APIs.

In a 6-2 decision, the apex US court said that Google’s copying of the API to re-implement a user interface, taking only what was needed to allow users to put their accrued talents to work in a new and transformative programme, constituted a fair use of that material.

The ruling has wider ramifications. The worldwide software development industry is also free to use these APIs without having to pay Oracle for the privilege.

Read Order here.

6. Bombay High Court Restrains Kamal R Khan from Making Defamatory Statements Against Producer Vashu Bhagnani

The Bombay High Court on Monday restrained ‘film critique’ Kamal K Khan from making defamatory statements or videos on social media platforms against Bollywood producer Vashu Bhagnani till a final order is passed on the latter’s Rs. 1 crore defamation suit.

The single bench of Justice AK Menon, passed the interim order on a suit filed by Bhagnani, against a series of tweets and a video by Khan, making numerous allegations against the producer and his family.

The applicant claimed that he has built his reputation “brick-by-brick” by making several critically acclaimed movies since 1995. He alleged that it is Khan’s modus operandi to target big banner films at the time of their release and make cheap publicity. He alleged that Khan was running a “well-orchestrated smear campaign” against him making distasteful comments about his family members.

He alleged that these statements have created an impression among the general public that the Applicant is a shameful and a vile person and these untrue mutations has caused great harm to the reputation of the applicant.

The respondent was asked to point out that how would his several statements made on Twitter would be limited to just ‘film criticism’. On failure to prove the aforementioned Justice Menon granted the applicant the interim relief sought. The court passed a similar order against the respondent in a similar matter against actor-producer Nikhil Dwivedi.

7. Kerala High Court Refuses Stay on Kerala Government Notification Banning Online Rummy for Stakes

The Kerala HC refused stay on the state government’s notification of Banning Online Rummy for stakes.

The challenge was made by 3 gaming companies namely: Play Games 24×7, Junglee Game and Gameskraft. The single judge bench of Justice N Nagaresh showcased aversion to interfere with the notification and instead listen the matter after vacation thereby not granting interim relief to the gaming companies to their dismay.

The applicants challenged the notification om the grounds that it is ultra vires section 14A of the Kerala Gaming Act, 1960 as it seeks to regulate the online space despite the legislation’s regulation of physical premises only.

The petitioners also contend, among other grounds, that the Notification effectively seeks to ban businesses offering the game of Online Rummy, which is violative of Art 19 (1) (g) of the Constitution of India, as it is a protected business under the aforementioned.

The gaming companies further cited various cases in support of their arguments including the Supreme Court’s verdict in State of Andhra Pradesh v. K Satyanarayan where it was an accepted proposition that Rummy is a game of Skill and the same should be accepted under the the Kerala Gaming Act.

They further argued that removal of exemption for online rummy cannot be done through an executive notification but had to be done through an amendment to the Act itself. Similar amendment was incorporated in the Kerala Gaming Act, 1960 to incorporate online lottery within its fold.

Whereas the State stood firm on its ground and contended that playing online rummy for stakes is covered by 2019 Division Bench judgment of the High Court in Play Games 24×7 Pvt. Ltd & Ors. v. Ramachandran K. Accordingly the court’s attention was drawn towards the onservation made in that order that playing rummy for stakes can fall within the mischief of the Kerala Gaming Act, 1960.

The court refused to pass an interim order and directed the respondents to complete their pleadings in the next hearing.

8. Bombay HC quashes FIR filed against band Dastaan LIVE booked in 2019 for ‘hurting religious sentiments’

The Goa bench of the Bombay HC quashed FIR filed in 2019 against the band Dastaan Live for allegedly hurting religious sentiments. The court noted that the Panaji Police registered a frivolous compliant without any justification.

On December 17, 2019, a band known as “Dastaan Live” performed at Serendipity Arts Festival at Campal, Panaji, Goa. As a part of the live performance, the band played their set-list of eight songs which were performed in various cities around India, unhindered, till then. One such song performed was the “Mantra Kavita” which had the use of the OM along with certain abusive language.

Next day, a complaint was lodged by one K Venkat Krishna, who alleged that “OM” is quite sacred to the Hindus and if the same is recited in a negative narrative or clubbed with abusive words or phrases, then, the same amounts to insulting religion and religious beliefs.

Following which 4 band members were arrested and were booked under section 295 A of the Indian Penal Code (IPC).

After going through the entire text of the song in question, the court noted that it is, “apparent that the complainant has adverted to only one small portion of the composition and by interpreting the same or rather misinterpreting the same, made the following vague allegations, which, according to us, do not even remotely constitute the ingredients of Section 295-A.

The division bench held that the police authorities are expected to be quite sensitive in such matters, because, the freedom of speech and expression is at stake in such situations. The bench further stressed that the criminal machinery ought not to have been set into motion based on such a complaint. This is abuse of the process, because, it is apparent that the Police authorities have not even taken cognizance of the legal position explaining the scope of section 295-A of IPC.

The court noted based on a frivolous complaint, some band members were incarcerated while others were forced to seek anticipatory bail. The court said that police authority was neither justified in registering the FIR nor arresting any of the band members.

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