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World
Intellectual Property Right Development - India
In the past few years, India has seen a major economic transition owing to liberalization of investment procedure. Constant modifications both in scope and organization during 2006 have further highlighted the need for stringent enforcement of IP law in India. India's judiciary has also recognized this need for the law to be interpreted and enforced in a manner that is conducive to encourage greater IP generation.
Bio-diversity/plant varieties and farmer's rights:
With the Indian economy being primarily agro-based, the Plant Varieties and Farmers Right Regulations were notified in the Gazette on December 7, 2006 by which the Plant Variety Registry has started accepting applications from April 2, 2007. Coupled with the Protection of Plant Varieties and Farmer's Rights Act, the Biological Diversity Act effective April 2004 has further strengthen and supported the IP laws this year by accepting applications online at http://www.nbaindia.org/introduction.htm.
Patents:
The Indian Patents Act has been amended thrice since 1970 to make it consistent with the TRIPs Agreement and the Convention on Biological Diversity (CBD). The amendment of the Indian Patent Laws in January 2005 generated intense debate and legal action in the scientific, technical and business communities. One of the interesting debates was over the patentability of new forms of substances (Section 3(d) of the Indian Patents (Amendment) Act 2005.
Trade marks:
Judicial pronouncements played a significant role in developing the law on trade mark and copyright protection in India. Some of these are discussed below:
1. Parallel Imports:- In the case [Bose Corporation v Mehta-Suit CS(OS)227 of 2006], the owner brought an infringement suit against the defendant for selling grey-market Bose audio systems without authorization. The court observed that the defendant's actions amounted to a false misrepresentation to customers as it was offering products with a Bose product warranty, which, in effect, was null and void. In another case [General Electric v Altamas Khan (Suit CSOS 1283 of 2006], the Delhi High Court granted an interim injunction restraining the defendant from dealing in GE dehumidifiers without authorization from the plaintiff, which the defendant was found to be trading as GE Dehumidifiers and misrepresenting itself as a GE dealer in India. Since imported products as dehumidifers were not to be sold in India, the court held that this amounted to a violation of the trade mark rights of the plaintiff. In the third case [Samsung v. KL Lalani (CSOS 1600 of 2006], the High Court of Delhi restrained seven dealers trading in grey-market Samsung ink toner cartridges relying upon the doctrine of material differences wherein substantial differences in the form of absence of warranty on the imported goods or insufficient instructions or inadequacy of labelling compared to the required standards were considered material differences and therefore legitimate reasons for banning grey market/parallel imports under Indian trade mark law.
2. Measures to combat piracy:- In a unique case [Polo Corpn v Jerry Arora & others, Suit CS(OS) 1354 of 2006], where the plaintiffs sued the defendants for infringement of well-known marks, the Delhi High Court directed the defendants to do 50 hours of community service in an Old Age Home in New Delhi and 50 hours in an orphanage in Mumbai, as the court recognized this as the value of community service method of redressal. In the case relating to a trade mark used for tobacco-based products [Dharampal Premchand v Tara Zarda (Suit CS/OS 2 of 2006], the court directed the defendants to establish 50 spittoons in a cancer hospital in Hyderabad.
3. Shape marks:- In the case of Zippo v Anil Moolchandani (Suit CSOS1355 of 2006), the High Court of Delhi extended trade mark protection to shape marks on the basis that "where the shape mark enables the public to distinguish a product from others which have another commercial origin, and to conclude that all the goods bearing it have originated under the control of the proprietor of the shape mark to whom responsibility for their quality can be attributed". This is significant as subsequent to the amendment of the Trade Mark Act 1999, shape marks have been granted statutory recognition and now the courts have finally translated this statutory recognition into reality.
4. Stopping prolific trade mark highjackers:- In the case filed by the Zee Telefilms Ltd., the High Court of Delhi restrained the Registrar of Trade Marks from processing pending applications of a Kolhapur-based pan masala manufacturer seeking multiple registrations of the trademark Zee in its
favor. The court also restrained the Registrar from advertising any further application in the Trade Marks Journal filed for the registration of the trade mark Zee. This order is significant because it provided a direct short circuit approach to stopping pirates rather than going tyhrough the cumbersome process and expense of attacking each and every application.
Copyright:
Films remake rights:- Kanungo Media v RGV Films. The plaintiff in this case had approached the court seeking a stay on the film Nishabd, claiming breach of copyright as well as infringement of its exclusive trade mark rights in relation to the title Nishabd. The Delhi High Court dismissed the suit on the ground that the plot,storeyline and nature of the two movies were different. The court also found fault with the plaintiffs in view of the delay in approaching the court and seeking the court's intervention in the matter just a day before the release of the defendant's film. In the case [Sholay Media v Parag Sanghvi, Suit CS(OS) 1892 of 2006], the High Court restrained the defendants from infringing the plaintiff's registered trade marks in the title of the film Sholay and its key character Gabbar/Gabbar Singh or any other marks/names which are deceptively similar.
Geographical indications:
The Geographical Indications of Goods (Regulations & Protection) Act 1999 came into force in September 2003 for the protection of agricultural, natural or manufactured goods or any goods of handicraft or goods of industry including food stuff originating from a specific locality on account of its agro-climateic conditions, soil, human factors, etc. Apart from well-known GIs such as Darjeeling tea, Basmati rice, Pashmina cloth and Pochampally suits, some recent additions to the pending applications are: The Embassy of Peru's application, The Lanco Institute of General Humanitarian Trust and Kondapalli Wooden Toys, Kalamkari Ariisans Revival and Upsurge for National Acclaim, etc.
The increase in filing of GI applications reflect the existence of IP awareness and knowledge among the small-scale industries which feel the importance of IP laws in their day-to-day lives.
Meeting the IP challenge:
The developments of the past year have clearly shown that the Indian courts are well geared to meet emerging challenges on the IP front. In fact, the courts have considered innovative measures to combat piracy. After the grant of damages, including punitive damages in January 2005, actions such as community service provide IP owners with an enhanced arsenal of measures to combat piracy and IP violation.
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