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Copyright of design when the same not registered under Designs Act

26 May, 2014 Drawing/design which is an artistic work under the Copyright Act, as also under the Designs Act, 2000, if not registered under the latter Act, will have protection under the Copyright Act only till the design is used not more than 50 times by an industrial process to produce an article. Deliberating on provisions of Section 15(2) of the Copyright Act, 1957, the Delhi High Court i...

Cleaning up advertisements

22 April, 2014 Businessmen should perhaps perfect the art of conveying only pleasant truths. While in the above cases, the words did not move beyond mere lauding, in Reckitt Benckiser v. Hindustan Lever Limited, the words/combination of and the depiction travelled far beyond – to disparagement. The comparison between products bathing soap and antiseptic liquid on one hand and rival cleansing ...

Combining words to allure, inform and also to be purely functional as a mark

22 April, 2014 A mere laudatory expression cannot be trademarked. It should be something more, but not just informational though it may be identified with the goods. The applicant (in re Innovation Ventures, LLC, 25-3-2014), found out that it can be quite difficult to write an advertising slogan which would laud, inform and also serve to identify source of goods. His slogan ‘HOURS OF ENERGY N...

Passing off action by former licensee – Trademark not to confine to particular product

22 April, 2014 Rajasthan High Court has on 31-3-2014 held that in cases of passing off, the question is no longer of “common field of activity”, but is of “common class of consumers”. The court in the case of Vijay Solvex Ltd. v. Shree Hari Agro Industries Ltd noted that though trade mark relates to the goods or to the service for which it is registered, modern judicial trend is not to confin...

Calcutta High Court rules on protection to design

26 March, 2014 The Calcutta High Court, recently had an occasion to examine the scope of protection to design. In this case [Kent RO Systems v. Sandeep Agarwal, Order dated 30-1-2014], the Calcutta High Court declined to follow the majority decision of Delhi High Court in Micolube India Limited v. Rakesh Kumar [Order dated 15-5-2013]  which supported common law rights and claim of passing off...

A prayer to trademark pretzel dismissed

24 March, 2014 In Fritolay Division v. Princeton Vanguard the defendant found how difficult it could be to trademark a centuries old food item. Pretzel said to have originated in Germany dating to the 16th century is a baked bread with intertwined knot like appearance as if hands folded in prayer. The different flavours, glazing with sugar, uses of pretzel and transition form a handcrafted ar...

Trademarks – Protection of well-known trademarks used in dissimilar services

24 March, 2014 The Delhi High Court has granted interim injunction in case of use of mark ‘BRAHMOS’ in relation to educational services. Relying on two precedents of the court, namely Bloomberg Finance LP v. Prafull Saklecha [2013 (56) PTC 243 (Del)] and Rolex Sa v. Alex Jewellery Pvt. Ltd. [2009(41) PTC 284 (Del)], it was held that if the registered trademark is a well-known trademark within...

Draft guidelines for examination of pharma patent applications

24 March, 2014 The Indian Patent Office has, on 28-2-2014, issued draft guidelines for examination of patent applications in the field of pharmaceuticals. Comments from the public have been invited by 21st March, 2014.  These guidelines are intended to assist Examiners and Controllers of the Patent Office in achieving uniform standards of patent examination in the pharma sector. Perhaps recog...

The overall appeal of a design

24 March, 2014 An award-winning design that appeals to children, toymakers and, in all likelihood, to IP lawyers was at the heart of the decision by the England and Wales Court of Appeals (Civil Division). In the High Court the single judge proceeded to compare two designs for suitcases which to a layman appears similar perhaps appeals alike. The original design ‘rodeo’ pertaining to a ride-o...

Seizing essence of IP protection

20 February, 2014 Time and again the question of when and how Customs can aid in enforcement of IP rights has come before the courts. It was the CJEU’s turn, answering a reference by the Danish court, to interpret Council Regulation (EC) No 1383/2003 of 22 July 2003, on measures to be taken against goods suspected of infringing IPR. The intended recipient of the goods - a Danish national had ...

Communication to public must be to ‘new public’

20 February, 2014 Providing clickable links which lead the user to copyrighted material otherwise available to public is not unauthorised communication. Answering a reference from Svea Court of Appeal (Sweden ), the CJEU has ruled that in order to be ‘communication to the public’ as per Article 3(1) of Directive 2001/29, it must be also be directed at new public.  In the instant case, the def...

Use of keywords when amounts to commercial communication

20 February, 2014 Examining damage to origin function, the advertisement function and the investment function of trademark when the word /mark ‘lush’ is used in the site of the online retailer (defendant) though the trademarked products are not sold , the High Court (UK – Chancery Division – Intellectual Property) upheld the claim of infringement. ‘Lush’ was used as an adword. The person us...

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