Jayson Industries Vs Crown Craft India

Date of Judgment: 03.07.2023
Case No: CS Comm 580 of 2022
Neutral Citation No: 2023:DHC:,4343
Name of Hon'ble Court: Hon'ble High Court of Delhi
Name of Hon'ble Judge: C Hari Shankar , H.J.
Case Title:Jayson Industries Vs Crown Craft India

THE SUBJECT MATTER SUIT:

The Plaintiff filed the Suit seeking relief of inter alia Permanant injunction for Infringement of Design.

THE SUBJECT MATTER REGISTERED DESIGN:

The Plaintiff claimed to have granted Design Registrations 326707, 326883 and 32688.

THE SUBJECT MATTER PRODUCT:

The subject matter design of  products involved in questions were of a bucket, a mug and a tub.

THE CLAIMED DESIGN:

The Plaintiff claimed novelty novelty  in the shape, configuration and surface pattern of the bucket, mug and tub.

THE PROCEEDING:

The Suit filed before the Ld. Trial Court and ex parte injunction was granted.

Subsequently by virtue of Section 22[4] of the Design Act 2000, the matter got transferred to Hon'ble High Court of Delhi.

Defendant Appeared and filed application seeking vacation of ex parte injunction.

CONTENTION OF DEFENDANT:

The Defendant contended the subject matter Design to be prior published.

In support of this, the Defendant filed third parties brochures, US Design Registrations, products available on the internet , prior to filing of the subject matter Design Registrations of the Plaintiff.

THE JUDGEMENT:

The Hon'ble High Court of Delhi was pleased to dismiss the Application of Plaintiff under Order 39 Rule 1 and 2 CPC and was pleased to vacate the injunction granted in favour of the Plaintiff.

THE REASONING:

The Two dimensional representation of the application of features or shape, configuration, pattern etc. to an article would constitute a “design”.

The design is to be judged “solely by the eye”. The test to decide whether a particular application of shape, configuration, pattern, etc. to an article constitutes a design is, therefore, essentially ocular/visual.

Judged in an ocular/visual manner, the application of the shape, configuration, pattern, etc., to the article must appeal to the eye. Thus, it is not mere ocular assessment, but ocular Appeal, which is decisive.

One should not confuse the principle of “ocular appeal” or “visual appeal” with “attractiveness”.  “Appeal” is a highly subjective concept, and beauty lies in the eyes of the beholder.  Often, as Narayanan says, strange and bizarre designs may also appeal.

What matters is, therefore, whether the design is unique, vis-à-vis prior art, and whether the unique

features of the design, vis-à-vis prior art, attract the eye. 

If they do, and the difference is not merely mechanical or functional in nature, the Court has to view the matter objectively, and not from the subjective point of view of a connoisseur of the arts. 

Thus, a “design” constitutes of features of shape, configuration, etc., applied, or meant to be applied, to an article of manufacture by industrial process which, when so applied, appeal when judged solely by the eye, and must not be purely functional in nature.

Features of shape, configuration, pattern, etc. which may already existed in prior art may, nonetheless, qualify as original, within the Section 2(g), if, the manner in which they are applied is new.

The only two features of the suit designs, in which novelty and originality are claimed by the plaintiffs, are the vertical ribs along the length of the suit designs and the flanges on the rim.

The various prior arts to which Defendant has alluded clearly indicate that vertical ribs along the length of the bucket/tub/mug in question, from apex to base, as well as extended flanges at the rim of the concerned vessel, are not features which have originated from the plaintiff. Hence the Design of Plaintiff was was held not to be unique enought worthy of protection by the Hon'ble Court.

DISCLAIMER

Information contained herein is being shared in the public Interest. The same should not be treated as substitute for legal advice as it is subject to my subjectivity and may contain human errors in perception, interpretation and presentation of the facts and law involved herein.

Advocate Ajay Amitabh Suman
IP ADJUTOR
Patent and Trademark Attorney
ajayamitabhsuman@gmail.com
9990389539

Ashique Exports (P) Ltd. Vs Suresh K.K.Trading as Shastha Industries and Others

Date of Judgment: 20.06.2023
Case No: OSA (CAD) 96 of 2021
Neutral Citation No: NA
Name of Hon'ble Court: Hon'ble High Court of Madras
Name of Hon'ble Judge: P.D.Audikesavalu , H.J.
Case Title:Ashique Exports (P) Ltd. Vs Suresh K.K.Trading as Shastha Industries and Others

The admissibility of photocopies of documents as evidence is a hotly debated topic in legal circles. In a recent case of trademark infringement and passing off, the Trial Court dismissed the suit filed by the Plaintiff, stating that the Plaintiff had failed to prove its case as it had only submitted photocopies of documents.

the Trial Court found fault with the Plaintiff's choice of evidence, stating that mere photocopies would not suffice to prove the Plaintiff's case. The court emphasized that original documents were required to establish the authenticity and veracity of the evidence. The Defendant, taking advantage of this situation, produced original documents that purportedly proved its rightful use of the trademark. Consequently, the Trial Court dismissed the suit, leaving the Plaintiff with no choice but to file an appeal before the High Court.

This article explores the facts and the ratio of the case, shedding light on whether photocopies of documents are admissible in evidence.

THE SUBJECT MATTER JUDGEMENT UNDER CHALLENGE:

Appellant was the Plaintiff while Respondent was the Defendant in the subject matter Suit.

The subject matter order assailed in the Appeal proceeding was the order, which emanated from dismissal of suit by the Ld. Trial Court.

Since the Suit filed by the Appellant was dismissed by the Ld. Trial Court, the subject matter Appeal was filed.

THE SUBJECT MATTER SUIT:

The Subject Matter Suit was filed plaintiff against the Defendants seeking the relief of permanent injunction restraining the Defendants from infringing the Plaintiff's Trade Mark 'Super Wash' and 'Super Wash – 555' washing soap.

THE ISSUE WHICH WAS TO BE DECIDED:

Essential feature of competing Trademarks of the parties was same , i.e. SUPER WASH. Both of the parties were dealing in soap. Hence the moot question was of the matter was that as to who was the prior user of the subject matter Trade Mark?

THE PLAINTIFF'S ASSERTION:

Plaintiff claimed that the same has been using the subject matter Trademark since the year 01.01.1997.

The Plaintiff also claimed to hold registration of said trademark effective since the year 24.03.1997.

Thus the Plaintiff claimed not only to be prior adopter and user of the subject matter Trademark, but also claimed to be registered proprietor of the same.

The Subject Matter Suit was filed seeking the relief of Inter alia Infringement of Trademark as also the passing off, besides other relief.

THE DEFENCE:

The Defendant claimed to have used the Trademark since the year 03.12.1997. The Defendant alleged that the claim of the Plaintiff to be prior user of the subject matter Trademark was wrong. It was the contention of the Defendant it it was the Defendant who was actually the prior user of the subject matter Trademark.

THE JUDGEMENT:

Appeal was dismissed. Thus the Judgment of the Ld. Trial Court , dismissing the Suit filed by the Plaintiff, was reaffirmed by the Hon'ble Court.

THE REASONS FOR DISMISSAL.

The court observed that although the plaintiff claimed to have used the trademark since 1997, they failed to provide any original documents to support their claim of prior use. Merely submitting photocopies of the documents was deemed insufficient to prove their case, and the plaintiff did not take any steps to provide secondary evidence regarding the photocopies. Since the documents produced by the plaintiff were photocopies and therefore inadmissible as evidence, their claim of being the prior user of the trademark failed. In contrast, the defendant submitted original invoices from 1998 bearing the subject matter trademark, which proved their prior use. Considering these factors, the trial court's decision to dismiss the plaintiff's suit could not be deemed wrong or perverse. Hence, the appeal was also dismissed. In order to succeed in the evidence stage, the plaintiff was required to provide original documents, which they failed to do in this case. Consequently, the court concluded that the plaintiff's claim of prior use could not be substantiated. The defendant, on the other hand, successfully demonstrated their prior use of the trademark through the submission of original invoices from 1998. This further supported the trial court's decision to dismiss the plaintiff's suit. Ultimately, the dismissal of the plaintiff's suit and the affirmation of this decision by the appellate court were based on the lack of sufficient evidence provided by the plaintiff to support their claim of prior use of the trademark. The defendant, through the submission of original invoices, established their own prior use and ultimately prevailed in the case.

CONCLUSION:

The High Court, upon hearing the appeal, carefully examined the Trial Court's decision and the arguments put forth by both parties. The court acknowledged that the Trial Court had correctly observed that photocopies of documents may not possess the same evidentiary value as original documents. 

The photocopies of documents can indeed be admissible as evidence if the necessary conditions under the Indian Evidence Act are fulfilled. But in the case at hand, the Plaintiff filed merely photocopies of documents and did not take any step to prove the same in accordance with law, the Trial Court rightly held that Plaintiff failed in proving its case.

DISCLAIMER

Information contained herein is being shared in the public Interest. The same should not be treated as substitute for legal advice as it is subject to my subjectivity and may contain human errors in perception, interpretation and presentation of the facts and law involved herein.

Advocate Ajay Amitabh Suman
IP ADJUTOR
Patent and Trademark Attorney
ajayamitabhsuman@gmail.com
9990389539

Aarur Tamilnandan Vs S.Sankar

Date of Judgment: 15.06.2023
Case No:CS No.914 of 2010
Neutral Citation No: NA
Name of Hon'ble Court: Hon'ble High Court of Madras
Name of Hon'ble Judge: S Sounther , H.J.
Case Title:Aarur Tamilnandan Vs S.Sankar

THE SUBJECT MATTER SUIT:

The Subject Matter Suit was filed by the Plaintiff against the Defendant on the ground inter alia that that the the plaintiff is the author and first owner of the copy right of the story “Enthiran”

It was further asserted that the original story of the Plaintiff namely Jugiba, which published in the year 1996 , was stolen by the Defendant.

THE STORY OF PLAINTIFF:

The Plaintiff claimed to have originally authored the story namely JUGIBA which was published in the year 1996.

The subject matter Story authored by the Plaintiff was pertaining to a Humanoid Robo namely JUGIBA , who was having extra ordinary capabilities.

According to the Plaintiff, the story of JUGIBA was original literary work within the meaning of Copyright Act 1957. This story was first of all published in Tamil Magazine namely INIYA UDAYAM.

THE THEME OF PLAINTIFF'S STORY:

The story of his book was based on the theme that there was Scientist who devoted decades in creating a robot having extra ordinary super power capability. Subsequently this Robot falls in Love with Heroine.

THE ALLEGATION:

The movie Enthiran copied this story from his book and that the Robot was named Jugiba in his book. The story of movie was claimed on the book of the Plaintiff namely JUGIBA. The Story of the Plaintiff was illegally copied by the maker of the Plaintiff and used in its Cinematographic work.

THE DEFENCE:

The Plaintiff can not have any monopoly in the idea of a Robot having extra ordinary capability and falling in love with Heroine.

The story of movie ROBOT is substantially different from the story of JUGIBA. The Defendant have presented and treated the story of the Plaintiff differently from that of the Plaintiff.

The Plaintiff has not made out a case for Copyright Infringement.

THE JUDGEMENT:

After hearing the arguments of parties, the Hon'ble Court was pleased to dismiss the Suit filed by the Plaintiff.

THE REASONS FOR DISMISSAL.

There can not be any copyright in idea. For the purpose of Copyright Infringement, the Court is not required to look into any idea or theme.

Copyright exists only in tangible expression of idea. The Court protects only the tangible expression of the idea. There can not be any monopoly in the theme of this idea of a Robot falling in love with a girl.

The Hon'ble Court further observed that there are many dissimilarity in the book of the Plaintiff and the movie of the Defendant. The Robot of Movie was first developed for Indian Army, which subsequently developed emotions and then fallen in love with a girl. This story line was different from that of the Plaintiff.

The Plaintiff himself admitted in his cross examination that there are many added matters in the movie of Defendant.

There Plaintiff has not examined any third party to prove that there are substantial similarity in the competing works of the parties.

In any case, the Plaintiff has not filed any comparative analysis of competing works of the parties to assist the Court to establish that competing works are substantially similar.

DISCLAIMER

Information contained herein is being shared in the public Interest. The same should not be treated as substitute for legal advice as it is subject to my subjectivity and may contain human errors in perception, interpretation and presentation of the facts and law involved herein.

Advocate Ajay Amitabh Suman
IP ADJUTOR
Patent and Trademark Attorney
ajayamitabhsuman@gmail.com
9990389539

Judicial Activism

Judicial activism has been a topic of debate in India for many years. It refers to the phenomenon where judges take an active role in shaping public policy, rather than limiting themselves to interpreting the law. This has become a hot topic once again in the current scenario as many people question the role of judges in shaping public policy. 

The Constitution of India is the supreme law of the land, and it provides for an independent judiciary that is free from the influence of the executive and legislative branches of the government. The judiciary is responsible for interpreting the law and ensuring that the rights of citizens are protected. 

It has the power to strike down any law that is unconstitutional or violates the rights of citizens. This power of the judiciary serves as a check on the legislative and executive branches of the government, and it ensures that the government does not exceed its powers.

However, there have been instances where judges have taken an active role in shaping public policy. This has led to a debate on whether judges should limit themselves to interpreting the law or whether they should actively shape public policy. 

It is necessary for judges to take an active role in shaping public policy in order to protect the rights of citizens. Sometimes the executive and legislative branches of the government fail to protect the rights of citizens, and it is up to the judiciary to step in and ensure that justice is served.

Judges should limit themselves to interpreting the law. Judges should not take an active role in shaping public policy, as this is the job of the executive and legislative branches of the government. The  judicial activism can lead to a situation where judges become too powerful and undermine the democratic process.

It is important to remember that the independence of the judiciary is an essential feature of Indian democracy. The judiciary serves as a check on the other two branches of the government, and it ensures that the government does not exceed its powers. The Constitution of India provides for an independent judiciary, and this independence should be respected.

At the same time, it is important to strike a balance between judicial activism and judicial restraint. Judges should not become too powerful and should limit themselves to interpreting the law. However, there may be situations where judicial activism is necessary to protect the rights of citizens. In such situations, judges should take an active role in shaping public policy.

The fabric of the Indian Constitution entails the independence of the judiciary, executive, and legislative. It is in the interest of the nation as a whole that the independence of these three major pillars of Indian democracy should be kept intact.

Judges should not become too powerful, but they should also be willing to take an active role in shaping public policy when necessary to protect the rights of citizens. Ultimately, the balance between judicial activism and judicial restraint must be struck in order to ensure that justice is served and the democratic process is respected.

Mosaicking of design is not permissible in Design Infringement case

In today's world, design infringement has become a common issue faced by the registered design holders, businesses, and corporations alike. As such, it is crucial to understand the legal aspects surrounding this topic in order to avoid any conflicts. This article will specifically examine a case where a suit for design infringement was filed by the plaintiff against the defendant on the basis of registered design. The subject matter product of the defendant was pressure cooker.

In this case, the plaintiff alleged that the defendant's design was an infringing copy of their registered design. The defendant appeared and claimed that the registered design was prior published on the grounds that it was published on YouTube. However, the Hon'ble High Court of Delhi restrained the defendant from using the impugned design. The court laid down several propositions while making their decision.

The Court observed that ocular comparison is the decisive test in the case of design infringement. This means that the court will compare the designs visually to determine if there is any similarity or copying.

Even a part of a product is eligible to be registered as a design provided it is capable of being made and sold separately. This means that even if only a small part of the product is unique, it can still be protected as a design if it can be separated and sold independently.

Onus of proving a design to be not novel is on the person who alleged it to be not novel. This means that if someone claims that a design is not novel, they must provide evidence to support their claim.

Mere drawing or paper publication is not sufficient until it is shown that the subject matter design is used in relation to an article. This means that simply publishing a drawing or design on paper is not enough; there must be evidence that it has been used in a real article.

Design registration is prima facie proof of the existence of novelty and originality. This means that once a design is registered, it is considered to be original and unique until proven otherwise.

In order to defeat a registered design on the ground of lacking novelty, the suit design itself has to be prior published. This means that if a design is registered, it cannot be declared as lacking novelty unless the infringing design itself was published before the registered design.

Prior publication must be in a tangible way. This means that the prior publication must be in a physical form that can be seen and touched.

Paper publication must be accompanied by evidence in such a way to enable the actual visual appearance of the design. This means that simply showing a drawing or picture of the design is not enough; there must be evidence of how it appears in reality.

The novelty must be substantial. This means that the unique aspect of the design must be significant and not trivial or easily overlooked.

Prior publication of stray features does not amount to prior publication of the entire design. This means that if a small part of the design was published before the design registration, it does not count as prior publication of the entire design.

Mosaicking of design is not permissible. This means that combining different elements of different designs to create a new design is not allowed, and it cannot be registered as unique.

A design which may be functional as well as have aesthetic attributes can qualify as a design. This means that designs that have practical functions as well as unique aesthetic features can still be protected.

The defendant who applies for the identical design cannot allege the design to be not novel. This means that if a defendant copies a registered design and applies it themselves, they cannot argue that the design is not unique.

Prior publication would defeat the registered design only in case the suit design itself is prior published. This means that prior publication of a different design does not invalidate a registered design unless the design being sued over is the prior publication.

The comparison has to be done with respect to the design and the prior arts. This means that when comparing designs, the court will consider the particular design in question as well as any other pre-existing designs or elements that may be similar.

 It is important to register your designs in order to protect your intellectual property. Design infringement can result in legal battles and significant financial losses for businesses and individuals alike. By understanding the legal aspects surrounding design infringement and taking necessary steps to protect your designs, you can avoid such conflicts and focus on growing your business.

The Case Law Discussed:

Date of Judgement:29.03.2023

Case No. CS Comm 697 of 2022
Neutral Citation No.2023:DHC:2494
Name of Court: Hon'ble High Court of Delhi
Name of Hon'ble Judges: C Hari Shankar
Case Title: TTK Prestige Limited Vs KCM Appliances

Disclaimer:

I do not guarantee the correctness and/or genuineness of thoughts/idea/ and information shared herein as it is subject to my subjectivity and may contain human errors in perception and presentation.

Ajay Amitabh Suman,
IP Adjutor and Patent & Trade Mark Attorney
Hon'ble High Court of Delhi
Ph no:9990389539,
Email: ajayamitabh7@gmail.com 

PATENTABILITY OF ANTINA HAVING ASYMETRIC BEAM PATTERN

The Suit Patent has been a topic of controversy in the technology world for some time now. It is a patent that describes a configuration for enhancing subscriber capacity in a cellular wireless communication system. The patent specifically relates to a split-sector antenna that emits at least one asymmetrical beam in a specific configuration.

One of the main arguments surrounding the Suit Patent has been whether or not it is for an antenna emitting asymmetrical beams. The patent is for a split-sector antenna emitting at least one asymmetrical beam in a configuration as specified, which enhances subscriber capacity. This distinction is essential, as it highlights the specific nature of the patent and its intended scope.

The next question that arises is whether or not the prior art has disclosed an antenna with the given configuration that enhances subscriber capacity in a cellular wireless communication system. This issue is critical, as it speaks to the novelty and non-obviousness of the Suit Patent.

In this Judgement, the Hon'ble High Court of Delhi has also thrown some light as to how the provisions of Section 3 (d) of the Patent Act has to be evaluated, besides other issues. Here is the brief discussion on the subject matter Appeal involved.

The subject matter Appeal were allowed against the
judgment dated 12.07.2019 passed by the Hon'ble Single Judge in the applications filed by the respondent (plaintiff in the suit) under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure, 1908.

THE SUBJECT MATTER INDIAN PATENT: IN240893 TITLED AS ASYMMETRIC BEAM PATTERN

The Plaintiff asserted right in the new kind of Antenna bearing Asymmetric Beam Pattern. The Plaintiff asserted that the subject matter Patent has efficacy over the prior art antenna having symmetrical Beam Pattern as this technology removes the problem faced by the prior art of call dropping.

The Hon'ble High Court of Delhi hold jusrisdiction of Hon'ble Court to entertain the suit as jusrisdiction was held to be a disputed fact, which could have been decided at the trial stage.

Neither of any prior art shows any teaching encouraging the person known in the art to defeat the Patentability of subject matter invention.

THE RELEVANT PORTION OF THE JUDGEMENT IS AS UNDER:

1.The suit is not for an antenna emitting asymmetrical beams;
it is a split-sector antenna emitting at least one asymmetrical beam in a
configuration as specified, which enhances the subscriber capacity.

2. Thus, the necessary question to be addressed is not whether an antenna
emitting asymmetrical beams was disclosed by prior art; it is whether
an antenna with the given configuration, which enhances subscriber
capacity in a cellular wireless communication system, was disclosed by
the prior art.

3.Mere discovery of a new use of a known process of a
product would not be patentable under Section 3(d) of the Patents Act.

4. However, a known product, which is specifically modified and
configured to provide a specified result of an economic value, would be
considered to be patentable as it would be a new product.

5.The Suit Patent is in respect of a method that describes a configuration for enhancing the subscriber capacity by using asymmetrical sub-sector coverage area.

6.Claim no.10 is in respect of a product that is so configured to emit
beams of the characteristics as described above.

7.It is obvious that the beams are not uncontrolled beams but are controlled to achieve the desired purpose. A product of the given description would, prima facie,be patentable.

8.The fact that a patent has been granted in some countries and
revoked in another, underscores the point that the question whether the
Suit Patent is liable to be revoked, is required to be considered by the
Court independently.

9. For evaluating the Patentability under Section (1) (a) and 64 (1) (h), not only the claims , but also whole specification has to be seen.

10.As there was no apparent perversity in the Judgment assailed, Plaintiff was held to be rightly entitled for injunction.

THE CONCLUDING NOTE:
The relevant issue is whether or not the prior art has disclosed an antenna with the given configuration that enhances subscriber capacity. This matter is of utmost importance, as it will determine the patentability of the Suit Patent under Indian Patent Law.

It is also essential to understand the criteria for patentability under Indian Patent Law. Section 3(d) of the Patents Act clarifies that the mere discovery of a new use of a known process or product would not be patentable. However, a known product that is specifically modified and configured to provide an economic value would be considered patentable as a new product.

In light of this information, it is evident that the Suit Patent would be patentable under Section 3(d) of the Patents Act. The Suit Patent is in respect of a method that describes a configuration for enhancing subscriber capacity by using asymmetrical sub-sector coverage area. Claim no.10 is in respect of a product that is so configured to emit beams of the characteristics as described above.

It is also worth noting that the beams emitted by the product described in the Suit Patent are not uncontrolled beams. They are controlled to achieve the desired purpose of boosting subscriber capacity, making the product prima facie patentable.

It is important to remember that when evaluating the patentability under Section (1) (a) and 64 (1) (h), not only the claims but the whole specification should be considered. This broader view of the patent information will ensure a more comprehensive understanding of its intended scope and potential feasibility.

The Suit Patent is not for an antenna emitting asymmetrical beams but for a split-sector antenna that emits at least one asymmetrical beam in a specific configuration to enhance subscriber capacity.

The issue of patentability is not whether prior art has disclosed an antenna emitting asymmetrical beams but whether prior art has disclosed an antenna with the given configuration to enhance subscriber capacity. The Suit Patent meets the criteria for patentability under Indian Patent Law. Hence in the Appeal, the Plaintiff was righty held to have been granting the injunction.

THE CASE LAW DISCUSSED:
Date of Judgement:10.04.2023
Case No. FAO(OS) (COMM) 186 of 2019
Neutral Citation No.2023:DHC:2479-DB
Name of Court: Hon'ble High Court of Delhi
Name of Hon'ble Judges: Vibhu Bakhru and Amit Mahajan
Case Title: ACE Technologies Corp Vs Communication Components Antenna

DISCLAIMER:
I do not guarantee the correctness and/or genuineness of thoughts/idea/ and information shared herein as it is subject to my subjectivity and may contain human errors in perception and presentation.

Ajay Amitabh Suman, IP Adjutor
Patent and Trade Mark Attorney
Hon'ble High Court of Delhi
Mob:9990389539
Email: ajayamitabh7@gmail.com