IPRMENTLAW WEEKLY HIGHLIGHTS (SEPTEMBER 5-11)

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  1. Supreme Court Issues Notice On Tamil Nadu Govt Plea Challenging Madras HC Judgment Striking Down Online Gaming Ban Law

The Supreme Court on September 9 issued a notice on a plea filed by the Tamil Nadu government challenging the Madras High Court’s order striking down the State’s ban on online games such as rummy and poker.

A Supreme Court bench issued the notice and has asked the respondents including gaming companies like Junglee Games, Play Games 24×7, Gemeskraft Technologies, along with All India Gaming Federation and others, to file their replies on the matter in four weeks.

The Tamil Nadu government moved the Supreme Court in December last year against the Madras High Court’s judgment on 3rd August wherein it had declared the government’s law banning online betting games as ultra vires of the Constitution.

The Karnataka and Kerala government had also banned online games in their states. However, the High Courts of both states have lifted the bans.

In March this year, the Karnataka government has also moved the Supreme Court, challenging the High Court’s order quashing several provisions of the Karnataka Police Act prohibiting betting and wagering in online games.

The bench has listed the case for hearing after eight weeks.

  1. TRAI seeks industry’s views on system requirements for DRM-based IPTV networks

The Telecom Regulatory Authority of India (TRAI) has come up a consultation paper (See here) on proposed amendments to the interconnection regulations 2017. It has amended the regulation to include system requirements for Digital Rights Management (DRM).

DRM refers to the management of the encryption systems for providing the functionality of conditional access system (CAS) and subscriber management system (SMS) for the Internet Protocol Television (IPTV) service providers.

The regulating authority has sought written comments on the Telecommunication (Broadcasting and Cable) Services Interconnection (Addressable Systems) (Fourth Amendment) Regulations, 2022 from the stakeholders by 7 October 2022. Counter-comments, if any, may be submitted by 21 October 2022.

The TRAI has suggested that the IPTV service provider has to retransmit linear channels over a closed network to set-top boxes (STBs) within the premises of subscriber. It clarified that IPTV must not include any electronic delivery for receipt and viewing via the Internet/OTT. It also stated that the IPTV linear services should not be available on Internet/public networks.

TRAI has also suggested the certain permissible data mismatch between DRM and SMS. Further, the data between the DRM and SMS must be reconciled on a monthly basis. The reconciliation report will have to be stored along with the system data for a minimum of two years or at least two audit cycles, or as per Schedule III whichever is later.

The TRAI additionally has also suggested that the IPTV operator will have to ensure that the current version of the DRM in use does not have any hacking history. A written declaration from the DRM vendor will be required to be furnished on an annual basis as compliance of this requirement.

  1. Government To Introduce Framework To Regulate Social Media Platforms

The Central Government on 7th September has apprised the Delhi High Court that it will introduce some mechanism to regulate the social media platforms but it will not cover the existing cases including account suspension by the platforms.

The counsel for Central Government made this statement during hearing the batch of petitions against the suspension of social media accounts of users by the social media platforms. One of the petitions was filed by Senior counsel Sanjay Hegde against the suspension of his Twitter account.

Advocate Kirtiman Singh appearing on behalf of the Centre told the bench, “We have checked up in terms of your lordship’s last order. The amendment will take place at some point of time, we don’t really know (when). It will be a prospective change and will not cover the existing cases, they will perhaps have to decide as per the existing scheme”

The Court however raised a question as to why the existing grievances and account deletion won’t be dealt with in terms of the proposed mechanism. The court said it wanted to understand the impact of any new regime on the cases before it.

The court said that “Before entering into judgement, we also want to understand if there is any regulatory mechanism that they are proposing to implement, and whether that would have any impact on this batch.”

In view of the above, the court allowed the Central Government to appraise the court over the issue and has listed the matter for further hearing on December 19, 2022. The court observed, ” If the scope of the regulatory power that you propose to invoke is known we will know what the contours of our jurisdiction area.”

  1. Media influencers may soon have to reveal sponsored posts as ‘paid content’ as per Standards for Social Media Influencers

As per a recent article on Economic Times, social media influencers may soon have to mandatorily disclose their sponsored posts as ‘paid content’ if there is a material connection between them and a brand, according to the Standards for Social Media Influencers currently being drafted by the government. In the event of failure, the influencers will be held accountable and may have to pay a penalty.

As per the article, there will be no threshold on the number of followers that an influencer has in order to fall under the purview of these standards.

The guidelines is expected to be published in the next couple of weeks.

  1. Twitter to HC: Intermediary can’t decide whether content lawful, needs court order to take down unlawful material:

The social media giant Twitter on September 07 informed the Delhi High Court that as an intermediary it cannot determine whether content on its platform is legal or otherwise and that it can only take action when notified to do so by a court or the relevant competent authority.

The bench was hearing a PIL filed by advocate Aditya Deshwal against the allegedly obnoxious posts on ‘Maa Kaali’ by through a Twitter handle ‘Atheist Republic’ and despite several complaints, Twitter has neither suspended the account nor taken down the offending content.

Senior Advocate Siddharth Luthra appearing for Twitter informed the bench that the objectionable content has been taken down from its platform. Additionally, Twitter, in its affidavit said that the information is required to be actioned when the platform is put to “actual knowledge” of any content that may be unlawful and has so been determined by a court of competent jurisdiction or by the appropriate government.

As the counsel for the petitioner sought time to go through and respond to the affidavit, a bench has listed the matter for further hearing on October 28.

  1. Trademark: Delhi HC: Grievance of ‘CHAAYOS’ and ‘CHAIOPS’ to be settled before mediation, only issue is over the phonetic/ocular similarity of the marks

Anticipating possibility of amicable resolution, the Delhi High Court has referred to mediation, the trademark dispute between ‘CHAAYOS’ (Cafe Chain) and ‘CHAIOPS’ (Cafe selling Tea Products) to Mediation.

Justice Pratibha M. Singh was hearing a suit filed by Sunshine Teahouse Pvt. Ltd for permanent injunction, restraining the infringement of trademarks and unauthorised use of trade names etc. of ‘CHAAYOS’ and ‘CHAIOPS’

Plaintiff’s brand ‘CHAAYOS’ was founded and began operations in 2012, and claimed to be the leading chain of Chai Cafes in India, that provides customised Chai in a variety of flavors. It also claims to have a huge online delivery system as well along with with more than 200 outlets across the country

It alleged that the defendant adopted the mark ‘CHAIOPS’ for selling tea products through a cafe under the name and style of ‘CHAIOPS’.

Plaintiff claims that the defendant used the trademark ‘CHAIOPS’ for products and services that are identical to its services and products, and is in violation of the registered trademark ‘CHAAYOS’.

Court noted that there is no similarity in the device and logo of the parties. “The only issue between the parties is over the phonetic/ocular similarity of ‘CHAAYOS’ and ‘CHAIOPS’ marks”, the court added.

  1. Trademark: Delhi High Court grants interim relief to ‘SOCIAL’ restaurant chain, restrains Jharkhand based restaurant ‘SOCIAL 75’ from using its trademark

Granting ex-parte ad-interim injunction in favour of famous restaurant and bar chain ‘SOCIAL’, the Delhi High Court has restrained a Jharkhand based restaurant from using its registered trademark ‘SOCIAL’.

The Court also directed SOCIAL 75 to remove all references from third party websites, where its services are sold, offered or advertised.

The suit was filed by Impresario Entertainment and Hospitality Private Limited against Social 75, a restaurant situated in Jamshedpur in Jharkhand, claiming that the intent to use the impugned trademark was to indicate to the consumers that ‘SOCIAL’ has opened its 75th Outlet in Jamshedpur and thereby attempting to encash upon the goodwill and reputation of the ‘SOCIAL’ trademark.

It was claimed that Social was a prior adopter and user of its registered trademark ‘SOCIAL’ and its variants and use of the impugned mark SOCIAL 75 amounted to infringement under Section 29 of the Indian Trademarks Act.

Having heard the parties, the Court ordered ‘Having heard learned counsel for the Plaintiff, this Court is of the view that Plaintiff has made out a prima facie case for grant of ex parte ad-interim injunction, as the impugned trademark is deceptively similar to the registered trademark of the Plaintiff. Balance of convenience lies in favour of the Plaintiff and it is likely to suffer irreparable harm in case the injunction, as prayed for, is not granted’.

  1. Trademark: Delhi High Court grants Interim Injunction in Favour Of Star TV Productions, Restrains Use Of Deceptively Similar ‘EUROSPORT’ Trademark

The Delhi High Court restrained Eurosport, sports channel and granted interim injunction in favour of Star Television Productions Limited, with respect to the use of ‘EUROSPORT’ trademark till final disposal of the suit as being identical or deceptively similar to the ‘STAR’ marks including the ‘STAR’ device.

The Plaintiff claimed that the use of Single Star by Eurosport, which also contained Star device, in its entirety was deceptively similar to its to its registered trademark STAR.

On the other hand, the defendants argued that the suit was a malicious attempt to wrongly obtain a commercial advantage over them and that Eurosport was the registered proprietor of the impugned trademarks and their variations, not only in India but over 100 jurisdictions around the world. It was further argued that the impugned marks were used globally by the defendants since 2015 without objections including from the Plaintiff.

The Court noted that while the plaintiffs claimed to be the prior use of the Single Star logo and the word STAR, Star India Pvt. Ltd. had commenced its broadcasting services in India as early as in 1991 and launched its first television channel Star TV in India in 1992. It also noted that the defendants claimed that they had adopted a “star logo” in 1989 when EUROSPORT had commenced its business of broadcasting in sports.

It was thus observed that even if EUROSPORT had commenced business in 1989 in Europe, it would also be relevant to determine as to when they had entered the Indian market.

The Court observed that “It is apparent from the record that they seem to have done so only in 2017. The various documents filed by the plaintiffs would indicate that since 1992 till 2017, the company Star India Pvt. Ltd. and Star TV Production Ltd. had expanded their broadcasting activities by introducing several channels which included entertainment and sports. The name of these channels included the word “Star” as also a Single Star logo placed in a particular manner and its variations in color and shading. The reputation that these channels and the popularity of these channels with the viewing public has resulted in the Single Star logo being identified with the plaintiffs as the originator of the content on these channels and the provider of entertainment and sports programs on television in India”

The Court added while that Plaintiff had coined the word STAR as an acronym for “Satellite Television in Asia Region”, the Court said that the defendants had no explanation for choosing the Single Star logo, though they had one for the Ring of Stars, that is to reflect the European Union.

The Court further added “A star to a common person would not connect to an entertainment and sports broadcasting channel. The use of a completely unconnected word and device to represent the broadcasting channels of the plaintiffs is a creative usage of the common word which requires to be protected,”

The Court therefore granted interim injunction in favour of the plaintiffs observing that the continued dishonest use of the Single Star by the defendants would cause irreparable loss and injury to the them, particularly by diluting the unique use of the word STAR and the Star logo in the business.

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