IPRMENTLAW WEEKLY HIGHLIGHTS (APRIL 19- 28)

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Father of Sushant Singh Rajput moves Delhi High Court against movies depicting late actor’s personal life

Krishna Kishor Singh, father of late actor Sushant Singh Rajput, filed a plea of injunction against the makers of all the movies, shows and other ventures being made on his son’s life. The movies are named as- Nyay: The Justice, Suicide or Murder: A Star Was Lost, and Shashank, and other unknown projects.

The applicant has contended that these ventures are designed to malign the late actor’s image and family reputation. Further he submitted that if these projects are allowed to continue then they might have the potential to ‘derail the CBI investigation’ into the death case of the actor.

In the plea, K.K. Singh has asserted that Sushant Singh Rajput was a well-known celebrity and had become a household name. The plea further reads that “it is right time that courts of our country acknowledged the right of celebrity at par with an intellectual property right since the personality of celebrities are being misappropriated for wrongful commercial gains at the cost of fame, reputation, and privacy”. The use of the late actor’s name/image/caricature/lifestyle without the consent of his legal heir amounts to violation of the personality right and copyright solely vested with the late actor.

The plaintiff strongly submits that none of the aforementioned ventures are based on facts and have been made without the consent of the actor’s legal heir or any of his family members. Sushant’s father also alleged that many people have tried to take the advantage of his son’s death and made money out of it and hence he also sought an amount of Rs 2,00,02,200 as damages from these moviemakers against the mental trauma caused to the family.

Following which a notice was issued to all the makers by the High Court.

Madras Bar Association moves Supreme Court challenging provisions of Tribunals Reforms Ordinance 2021

The Tribunals Reforms (Rationalisation and Conditions of Service) Ordinance 2021 was challenged by the Madras Bar Association in the Supreme Court. The challenge was based on Sections 12 and 13 of the ordinance and section 184 and 186 (2) of the Finance Act which are amended through the ordinance.

The association has contended in its plea that many provisions of the ordinance are contrary to the directions issued by the apex court in the case Madras Bar Association vs Union of India.

The petition highlighted that the Supreme Court issued the directions to ensure greater autonomy and independence for the Tribunals and to make sure that they unction more effectively. However, the Ordinance seeks to undermine the Supreme Court judgment in letter and spirit. The association further expressed that the ordinance ought to be struck down for being violative of Articles 14 and 21 for being arbitrary and unreasonable, against the principles of Separation of Powers and independence of Judiciary as it was in contravention to the previous decisions made by the Apex court.

The ordinance made amendments to nine acts including the Cinematograph Act, Copyright Act, Customs Act, Patents Act, Trade Marks Act, Geographical Indications of Goods (registration and protection) Act, Protection of Plant Varieties and Farmers Rights Act, etc. Those provisions are not challenged in the plea of Madras Bar Association, which confines its challenge only to the changes made to the Finance Act 2017.

Removal Of Offending Content From Internet: Delhi High Court Lays Down Procedure, Guidelines For Intermediaries, Govt. Agencies

In another breakthrough judgement to protect the privacy of the citizens, a single judge bench of the Delhi High Court, comprising of Justice Anup Jairam Bhambani, held that photographs taken from Facebook and Instagram accounts and uploaded on pornographic website without the consent of such person would amount to an offence u/s 67 of the IT Act.

The observation came in a petition alleging that petitioner’s photographs posted on her Facebook and Instagram accounts were taken without her knowledge or consent and were unlawfully posted on pornographic website. The Bench also added that in such cases, the Court may pass an order of injunction or restraint.

Further, the role played by intermediaries was also emphasized regarding their duty to inform their users regarding unfair activities. It is also made mandatory for them to remove and disable access to offending content once they receive ‘actual knowledge’, within 24 hours, along with blocking of search results throughout the world. Failure to do so can amount to loss of liability available u/s 79(1) of the IT Act.

The Bench also issued specific and general directions for the relevant parties. The directions were based on Intermediaries and Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021and included that the Court may issue an order for the website or online platform to remove the offending content within 24 hours of the receipt of the order. However, the website has to preserve the content for purpose of evidence. The intermediary has to employ pro-active monitoring by using automated tools to identify such content. Furthermore, the aggrieved party can be directed to make a complaint on the National Cyber-Crime Reporting Portal.

Read Judgement here.

Compulsory License for Covid Drugs on the Table, Says Delhi High Court

Recently, the Delhi High Court hauled up the government on various issues regarding the response to the pandemic so far, concerning oxygen use, ramping up of testing facilities, shortage of drugs and black market selling of them, bed shortages, wastage of 44 lakh vaccines, etc. In the case of Rakesh Malhotra v. Govt. of NCT, the Delhi High Court directed the Central Government to ramp up production of medicines for treatment of Covid, noting the various sections of the Patent Act which allow compulsory licence / governmental use of such inventions. The court suggested that “the best course would be to encourage the existing manufacturers to ramp up their production on a war footing. They should also be encouraged to grant voluntary licenses to other entities to manufacture the requisite drugs. However, if such efforts do not fructify soon enough, the Government/ Controller should not hesitate to invoke their jurisdiction and powers under the aforesaid provisions of the Patents Act, since the lives of thousands of people are being lost each day in the country due to COVID.”

The Bombay High Court quashed FIR registered against Newslaundry Journalist Prateek Goyal, for using the logo of ‘Sakal Media Group’ in two articles.

The Bombay High Court in Prateek Chandragupt Goyal v. State of Maharashtra quashed an FIR lodged against Newslaundry journalist, Prateek Goyal by the Sakal Media Group for allegedly committing offences under the Trademarks Act, holding that the mere use of the registered trade mark in articles authored by the petitioner did not amount to false application of the trade mark.

Division bench of Bombay high court comprising Justice S S Shinde and Justice Manish Pitale, quashed the FIR registered for an offence under Section 103 of the Trademark Act.

The complainant Sakal Group had alleged that (Goyal) had committed an offence under Section 103 of the aforesaid Act by falsely applying the trademark of Sakal Group in two articles authored by him and published in “Newslaundry”. They further submitted that these articles were highly defamatory against the Sakal Media Group and that use of the official trademark of the Sakal Media Group and Sakal Times on these articles resulted in an offence under Section 103 of the Act.

The court noted that on the proper interpretation of Sections 101, 102 and 103 of the Trademark Act, from the facts of the case mere use of the registered trademark of the Sakal Media Group in articles authored by the petitioner and published by the news portal ‘Newslaundry’, do not fit into the definition of the false application of the trademark in relation to goods or services as the mark was included only to indicate those specific articles pertained to the Sakal Media Group.

Read judgement here.

A system generated harassment:” Kerala High Court on Central Registration Centre of MCA declining incorporation of LLP on Trademark grounds

The Kerala High Court recently held that the Registrar of Company was not justified in declining incorporation of of “Reef Wellness & Excellence LLP” on the ground that the proposed name includes the word ‘Reef’, which is a trademark under class 5.

The court noted that the rejection was done without application of mind, not considering the fact that the name proposed by the petitioner cannot be said to be identical or deceptively similar. The Kerala High Court criticized the government officials for blindly depending on the system without applying their mind.

Kunhi Muhammed Etayattil, who was the petitioner in the instant case challenged the order of the registrar of companies which rejected the incorporation of LLP named “Reef Wellness & Excellence LLP” on the ground that proposed name includes the word ‘Reef’, which is a trademark under class 5.

The petition expressed that the Section 15 (2)(b) of the LLP Act has to be read down to mean that, the restriction can be made applicable only if the proposed name includes a  trademark registered in the same class of goods or services in which the activity of the company is being carried out or is proposed to be carried out.

The Single Judge Bench of Justice N. Nagaresh described the issue as a “‘system generated harassment’ aggravated by non application of mind by officials who leave everything to be dealt with by the system, thereby putting the common man to an agonising phase of suffering, where he is condemned to deal with faceless men and machines,” the High Court while expressing the dissatisfaction said”.

The court added that the name proposed by the petitioner cannot be said to be identical or deceptively similar as when the petitioner sought for a word name for a service which is not identical or deceptively similar to other wordmark already registered for a different class of products, the respondents are not justified in rejecting the application on ground that the proposed name include the work “REEF” which is existing trademark under Class 05.

The court directed the respondent to incorporate the LLP without raising any dispute on the name proposed by the petitioner.

Read judgement here.

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