01 January 0001

IPR Amicus: January 2019

Liabilities of an intermediary – The Indian perspective
by R. Parthasarathy & Godhuli Nanda

In a recent case Delhi High Court has observed that when an e-commerce company claims exemption under Section 79 of the Information Technology Act, it ought to ensure that it does not have an active participation in the selling process. In deciding a suit filed by Christian Louboutin for infringing the trademark through defendants’ website www.darveys.com, the High Court observed that although as per Section 79(1) of the IT Act an intermediary is not liable for third party information hosted on its platforms, Sections 79(2) and 79(3) are exceptions to Section 79(1). Hence, the liability of an intermediary could be determined based on the role of the intermediary while providing its service i.e. whether it was active or passive. Taking note of various circumstances which would amount to falsifying the mark, it was held that presence of any element which shows active participation could deprive intermediaries of the exemption. Considering the facts of the case, it was held that the use of the mark without the permission of the plaintiff and without ensuring that the products which were sold, were in fact genuine, would constitute a violation of the plaintiff’s rights…

Statute Update

  • Draft Patent (Amendment) Rules, 2018 published

Ratio decidendi

  • No summary adjudication of suit requiring expert evidence, at injunction stage – Supreme Court
  • Composite suit for passing-off and infringement of registered design is maintainable - Delhi High Court
  • Renewal Fee for registered plant variety to be as per Rule 39 of the PPV&FR Rules, 2003 - Delhi High Court
  • Trademark - Honest use of competitor’s mark for comparison allowed – Delhi High court

News Nuggets

  • Trademark infringement by storing of infringed goods
  • No registration of mark having sign of designating wine and geographical name
  • TV commercials disparaging frozen dessert to delete derogating portions
  • Copyright claim based on power of attorney when not correct

January, 2019/Issue-88 January, 2019/Issue-88

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