Vasundhara Jewellers Vs Kirat Vinodbhai Jadvani

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Judgement Date:21.09.2022

Case No. CS COMM 363 OF 2022

Hon'ble High Court of Delhi

Navin Chawla,H.J.

Vasundhara Jewellers Vs Kirat Vinodbhai Jadvani

Plaintiff Trademark: VASUNDHARA

Plaintiff's Product: Jewellery

Plaintiff is registered proprietor of VASUNDHARA Composite Label

Defendant's Trademark: VASUNDHARA FASHION

Defendant's Product:Textile product

Injunction refused on the following ground.

1. VASUNDHARA is common name.

2. Plaintiff does not have word per se registration. Its only have label registration. Hence by virtue of Section 17,it can canot assert individual right in the Trademark VASUNDHARA.

3. Goods of the Plaintiff and defendant are thought , cognate, still not identical.

4. Plaintiff is based in Delhi, while Defendant is based in Gujarat

Ajay Amitabh Suman, IPR Advocate, Hon'ble High Court of Delhi.

ajayamitabh7@gmail.com, 9990389539

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Tata Sons Pvt.Ltd. Vs Hakunamata Tata

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Judgement  Date:19.09.2022
Case No. FAO OS COMM 62 OF 2022
Hon'ble High Court of Delhi
Mukta Gupta and Manoj Kumar Ohri , H.J
Tata Sons Pvt.Ltd. Vs Hakunamata Tata

The Appeal was filed against the Order where by the Hon'ble Single Judge casted his doubt on the jurisdiction of the Hon'ble Court  to entertain the suit.

Still suit was entertained by the Single Judge, still injunction was refused.

The Hon'ble Division Bench allowed the Appeal and granted the injunction by observing that web sites of the Defendant was interactive in nature. Hence the Court was having Jurisdiction to entertain the Suit.

Ajay Amitabh Suman, IPR Advocate, Hon'ble High Court of Delhi.
ajayamitabh7@gmail.com, 9990389539

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Laboratoire Griffon Vs Harrissa Healthcare

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Judgement Date:15.09.2022

Case No. Interim Application (L) No.25388 of 2022 in Commercial IP Suit No.25387 of 2022

Hon'ble High Court of Bombay

R.I.Chagla , H.J

Laboratoire Griffon Vs Harrissa Healthcare

Plaintiff's Trademark:GLIMET

Defendant's Trademark:ALMET

Ex parte injunction granted 

Ajay Amitabh Suman, IPR Advocate, Hon'ble High Court of Delhi.

ajayamitabh7@gmail.com, 9990389539

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Sterlite Technologies Limited Vs HFCL Limited

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Judgement Date:14.09.2022
Case No. CS (COMM) 19/2022
Hon'ble High Court of Delhi
Prathiba M Singh , H.J
Sterlite Technologies Limited Vs HFCL Limited

What are the circumstances where a defendant could be allowed to use the principle of mosaicing to defeat a patent? Or in other words, how the Hon'ble Court would evaluate which of the prior arts cited by the Defendant are relevant for the purpose of mosaicing.

The Hon'ble High Court of Delhi, in its recent judgement dated 14.09.2022 passed in Suit bearing CS (COMM) 19 of 2022 titled as Sterlite Technologies Limited Vs HFCL Limited, considered this argument of the Plaintiff regarding mosaicing of prior art and put some light on this issue. 

The subject matter suit was filed seeking infringement of Patent No. IN335369, which was granted to the Plaintiff in relation to Optical Fiber Cables, which was granted to the Plaintiff on 20.03.2020 with a priority date of 29.03.2016. The suit was filed by the Plaintiff on the grounds inter alia that the optical fibre cables of the Defendant's are violating the subject matter patent and, accordingly, an ex parte injunction dated 12.01.2022 was obtained. 

Vidé In the judgement dated 14.09.2022 passed by the Hon'ble High Court of Delhi in the afore mentioned suit, the application of the Plaintiff under Order 39 Rule 1 and 2 CPC and the application of the Defendant under Order 39 Rule 4 CPC was disposed off. 

As per the case of the plaintiff, the earlier optical fibre cables were of bigger diameter and required large ducts for installation. While the subject matter suit pertains to optical fibre cables, which have a smaller diameter and reduced weight, 

The main claim of the Suit Patent was that it had 16 optical fibers, whereas the Defendant's product only had 12 optical fibers. The defendant relied upon two basic prior arts. 

The Plaintiff sought to disregard these prior arts by raising the objection that these prior arts should be rejected as the defendant was trying to defeat the patent of the Plaintiff by mosaicing prior arts. 

However, the Hon'ble High Court of Delhi rejected this argument of the plaintiff by holding that mosaicing of prior art is applicable only in those cases where the defendant relies upon multiple prior arts which are totally unconnected to each other. As in the subject matter suit, the defendant relied upon only two prior arts and they are connected, hence it cannot be said that the defendant is trying to do the mosaicing of prior arts. 

The Hon'ble High Court of Delhi, in this case, was pleased to discuss two of the prior arts in order to defeat the novelty of the subject matter patent. The Hon'ble High Court of Delhi made a comparison between the basic features of the cited 2 prior arts with the subject matter patent and observed the basic similarity between all three are as under: 

Water swella tubes/sleeves are included in the suit patent. All three disclose the presence of jelly within the buffer tubes.

All three OFCs have ripcords and an outer sheath.

In the RJIL OFC cable, an aramid yarn is used for cross-binding of the buffer tubes along with a water-blocking tape.

The Gigacom uses a polyethylene lining and water-blocking yarn around the CSM;

 the suit patent OFC discloses a strengthening and a binding polyester, aramid or propylene layer and a water-blocking material. 

As per the observation of the Hon'ble Court, all the basic features of the suit patent were available in the 2 cited prior arts. Hence, the subject matter patent was liable to be defeated on the ground of lacking inventive step. 

Another reason for declining the injunction was that in the defendant's Optical Fiber Cables , only 12 fibre cables were used, while in the subject matter suit patent, 16 fibre cables were used. 

Though the Plaintiff sought to argue that the number of 16 fibre cables used is merely illustrative in nature and the defendant's product is covered under the Indian Patent, even if it uses only 12 optical fibres. This argument could not be appealed to the Hon'ble Court. 

The reason for rejecting this argument was that the Plaintiff itself had applied another patent application in which the number of optical fibres was not specified, while in the subject matter patent, the number of 16 optical fibres was specially mentioned.

Hence, it cannot be said that the number of optical fibres used in the subject matter patent, i.e. 16, was merely illustrative. Actually, it was one of the basic features and the defendant, by using 16 optical fibres, was out of scope of the subject matter patent. 

Thus, the Hon'ble High Court of Delhi, though rejected the interim injunction on the ground of lacking inventive step , also considered the 2 cited prior arts with respect to lacking novelty also. 

Prior art mosaicing is only applicable when multiple and completely unrelated prior arts are used to defeat the patent on the grounds of lack of inventive step. However, in this case, the defendant relied on only two prior arts that were linked, so it cannot be said that the defendant was attempting to mosaic prior arts. 

The result was that the Hon'ble High Court of Delhi, in the subject matter suit, considered two of the prior arts cited by the Defendant, which were similar and connected to some extent, for the purpose of lacking novelty. This is another aspect that the Hon'ble Court observed that these two cited prior arts may not be relevant for destroying the novelty but certainly for the purpose of lacking inventive step.

Ajay Amitabh Suman, IPR Advocate, Hon'ble High Court of Delhi.
ajayamitabh7@gmail.com, 9990389539

Mahesh Bhai Vs State of Gujarat

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Judgement  Date:14.09.2022
Case No. Criminal Misc Application No.8581 of 2022
Hon'ble High Court of Ahmedabad
Niral R Mehta , H.J
Mahesh Bhai  Vs State of Gujarat

Under the provisions of copyright Act 1957, criminal complaint can be filed in order to initiate criminal proceeding. The provision of Section 63 of the Copyright Act 1957 provides for the offence under the Copyright Act 1957.

Section 63 of the Copyright Act 1957 talks about infringement of copyright, but it does not define the infringement. While Section 64 of the Copyright Act of 1957 empowers police authorities to seize infringing goods.

Now the question arises as to whether a police authority can register an FIR against any person after invoking the provisions of Section 64 of the Copyright Act 1957. Or in other words, can it be said that Section 64 of the Copyright Act 1957 provides for criminal liability?

The Hon'ble High Court of Gujarat at Ahmedabad , vide its Judgment dated 14.09.2022 passed in Criminal Misc Application No.8581 of 2022 titled as Mahesh Bhai Vs State of Gujarat , was having an occasion to address this issue.

Now coming to the facts of the case, an FIR has been registered against the applicant at the behest of a criminal complaint filed by Respondent No.2.

The subject matter FIR was registered on the grounds of inter alia alleging violation of Section 64 of the Copyright Act 1957.

The applicant claimed to be the registered owner of the copyright. Hence, the mentioned FIR could not have been registered against the applicant.

In order to appreciate the argument of the applicant, let us see what Section 51 of the Copyright Act 1957 provides for.

"51.Copyright in a work shall be deemed to be infringed:

(a) when any person, without a license granted by the owner of the Copyright or the Registrar of Copyrights under this Act or in contravention of the conditions of a license so granted or of any condition imposed by a competent authority under this Act".

From bare perusal of Section 51 of the Copyright Act 1957 it is apparent that if a person does have license from the Registrar of Copyright, then such act does not amount to be infringement of Copyright.

In the facts of the case, the High Court interpreted the copyright registration granted in favor of the Applicant, to be such license given by the Registrar of Copyright.

The Hon'ble High Court of Gujarat observed that since the Applicant is registered proprietor of the copyright. Hence necessary ingredients of Section 51 of the Copyright Act 1957 has not been satisfied.

 

The Hon'ble further observed that there is no any question of registration of FIR by the Police authorities against the Applicant herein as Section 64 of the copyright Act 1957 provides the power to the police authorities only to investigate the matter. Let is see what Section 64 of the Copyright Act 1957 stipulates?

"64. Power of police to seize infringing copies

(1) Where a magistrate has taken cognizance of any offence under section 63 in respect of the infringement of copyright in any work, it shall be lawful for any police officer, not below the rank of sub-inspector, to seize without any warrant from the magistrate, all copies of the work wherever found, which appear to him to be infringing copies of the work and all copies so seized shall, as soon as practicable, be produced before the magistrate."

Thus, it is apparent that Section 64 of the Copyright Act 1957 does not define an offence. It is only the enabling section which empowers the police authorities to seize the infringing products.

The Hon'ble Court rightly observed that under Section 64 of the Copyright Act, the police authorities can only seize the infringing goods. Section 64 of the Copyright Act does not provide for any offence. Hence, the police authorities wrongly registered the FIR against the applicant.

The conclusion would be like this: a police authority can not register an FIR against any person after invoking Section 64 of the Copyright Act 1957. It is only a provision that provides power to a police authority to investigate the matter and seize the infringing product. No criminal liability can be affixed on the basis of Section 64 of the Copyright Act 1957. Of course, aid under Section 51 and 63 would be required in order to fix criminal liability on any person.

This is so because neither Section 63 nor Section 64 of the Copyright Act 1957 provides for what constitutes an infringement. Without satisfying the necessary ingredients of Section 51 of the Copyright Act 1957, an FIR solely registered on the basis of Section 64 of the Copyright Act 1957, would not be maintainable.

Ajay Amitabh Suman, IPR Advocate, Hon'ble High Court of Delhi.

ajayamitabh7@gmail.com, 9990389539

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