Alkem Laboratories Limited Vs Laborate Pharmaceuticals Ltd.

DATE OF JUDGEMENT: 17.06.2022
CASE NO: FAO (Comm) 94 of 2022
CASE TITLE: Alkem Laboratories Limited Vs Laborate Pharmaceuticals Ltd.
NAME OF HON'BLE COURT: Hon'ble High Court of Delhi(Division Bench)
NAME OF HON'BLE JUDGE: Hon'ble Justice Mr. Jyoti Singh+Anoop Kumar Mendiratta

Important Finding in the Decision: 1. The Appeal was filed by Defendant/Appellant where by the Ld. Trial Court declined to vacate the injunction order. The Ld. Trial court also rejected the application of Defendant under Section 151 CPC, seeking permission to sale the existing stock. Para 3

2. Preliminary objection is raised on behalf of the Plaintiff/Respondent with
regard to maintainability of the appeal on the ground that the relief of selling
the existing stock was sought by the Appellant in an application filed under
section 151 CPC and no appeal lies against an order passed under the said
provision. Para 6

3.The Court rejected the preliminary objection by observing A perusal
of the impugned order dated 09.06.2022, wherein the learned Trial Court has
rejected the prayer of the Appellant to sell the existing stock, clearly
indicates that the order has been rendered under Order 39 Rule 4 CPC.
While it is a matter of record and cannot be disputed that the prayer for sale
of existing stock was made in an application under section 151 CPC,
however, the decision thereon has been rendered as a part of the order under
Order 39 Rule 4 CPC, treating the said relief as an ancillary and/or
alternate interim relief. Para 12

4.The permission to sell existing product was granted as the product was schedule H drug and even Respondent did not challenge the quality of Appellant's product. Para 13

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

Hindustan Unilever Limited. Vs USV Private Limited.

DATE OF JUDGEMENT: 09.06.2022
CASE NO: Commercial IP Suit (L) No.805 of 2021
CASE TITLE: Hindustan Unilever Limited. Vs USV Private Limited.
NAME OF HON'BLE COURT: Hon'ble High Court of Bombay
NAME OF HON'BLE JUDGE: Hon'ble Justice A.K.Menon

Important Finding in the Decision: 1. The Subject matter Suit was filed by the Plaintiff against advertising campaign launched by the defendant to publicize its products under the brand SEBAMED, amounting to disparagement of plaintiffs’ products viz. Lux, Dove, Pears and Rin. Para 1-2.

2. The plaintiffs are particularly aggrieved by the fact the plaintiffs’ soap Lux was said to have a pH value of 10 equivalent to the plaintiffs’ detergent soap Rin thereby alluding to the fact that by using Lux was equivalent to using a
detergent Rin whereas SEBAMED had a “perfect pH 5.5. for sensitive
skin.”Para 8.

3.Thus it was alleged that use of Plaintiff's product namely Lux, which have pH value 10, equivalent to a detergent soap. Hence it was not suitable to sensitive skin. While Defendant's SEBAMED product was having pH value of 5.5, hence was suitable to sensitive skin.

4.The Court observed that comparison by the Defendant with Plaintiff's soap is not appropriate. Both the competing products of the parties do not intended to serve same purpose. Para 69.

5.The Defendant tried to disparage the Plaintiff's product Lux by making its comparison with RIN which is a detergent . Para 77.

6.Defendant's product is alkali free and is suitable for sensitive skin only. Since Defendant's product was soap free hence making its comparison with pH value of Plaintiff's product is unfair and unreasonable. Para 74,78.

7.Defendant's campaign was also found to be disparaging given the fact that as per own admission of the Defendant, most of the soap reflects pH value in the range of 9.01 to 11. Para 80.

8.The comparison done by the Plaintiff was neither bonafide nor scientific. Para 81.

9. Comparison made on the basis of pH value , was also unfair. The comparative advertisement made by the Defendant attempted to discredit the Plaintiff's product. Para 82.

10.Resultantly , Plaintiff was granted interim injunction against the Defendants.

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

Crazy Concepts and Mazes Pvt. Ltd. Vs N.Venkta Yayadri Rao

DATE OF JUDGEMENT: 09.06.2022
CASE NO: Appeal from Order No.197 of 2017
CASE TITLE: Crazy Concepts and Mazes Pvt. Ltd. Vs N.Venkta Yayadri Rao
NAME OF HON'BLE COURT: In the Hon'ble High Court of Gujarat at Ahmedabad
NAME OF HON'BLE JUDGE: Hon'ble Dr. Justice A.P.Thaker

Important Finding in the Decision: 1. The Appellant filed subject matter suit on the basis of copyright in artistic/ literary/ dramatic/ musical works
under the title “SCARY HOUSE and the Trademark SCARY HOUSE. Para 2.2.

2. The case was filed against the Defendants (Defendant No.1 was the ex-employee of the Plaintiff) as the same has
started “TERRIFIC DEVIL ZONE” with substantial and material
reproduction and adaptation of said work of plaintiffs. Para 2.6

3.Injunction was declined by the Ld. Trial Court , against which the present Appeal was filed. Para 1.

4.The Hon'ble Court reiterated the well settled principle of interference in Appellate Jurisdiction.

5.To justify interference, the appellant would have to demonstrate that the discretion has been shown to have been exercised arbitrarily, or perversely or where the Court had ignored settled principles of law regarding grant or refusal of interlocutory injunction. Para 5.

6.By virtue of Section 22 of Copyright Act 1957, copyright in relation to published literary, dramatic, musical and artistic works would subsist in the life time of the author and until 60 years from the beginning of calendar year next following the year in which the author dies. Para 7.

8.Adaptation in relation an artistic work includes the conversion of work into a dramatic work by way of performance in public or otherwise. Para 8.

9.The Plaintiff has put on record various documents showing that the work of the Defendants was nothing , but in fact work of the Plaintiff in different name. This factum was also not disputed by the Defendant. Para 8.

10. In view of the above, trial court order was set aside and Appeal was allowed. Para 9.

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

Benjamin Moore & Co. Vs Attorney General Of Canada

DATE OF JUDGEMENT: 17.06.2022
CASE NO: T-1340-20 and T-1341-20 [2022 FC 923]
CASE TITLE: Benjamin Moore & Co. Vs Attorney General Of Canada
NAME OF HON'BLE COURT: Federal Court of Cananda
NAME OF HON'BLE JUDGE: The Associate Chief Justice Gagné

Important Finding in the Decision: 1. While doing the claim construction in the claim of a Patent, purposive construction has to be applied, instead of problem solving test.

2. The key to purposive construction is the identification by
the court, with the assistance of the skilled reader, of the particular
words or phrases in the claims that describe what the inventor
considered to be the “essential” elements of his invention. Para 15

3.Purposive construction also indicates that according to the intent of the inventor, expressed or inferred from the claims, that a particular element is essential irrespective of its practical effect. Para 27 (iv).

3.The order of the commissioner was set aside as the Commissioner of Patent , instead of purposive construction , used problem solution test. Para 15,16,21, 36.

4.The evaluation of Purposive construction entails the following steps.(Para 27).

(e) The claims language will, on a purposive construction, show
that some elements of the claimed invention are essential while
others are non-essential. The identification of elements as essential
or non-essential is made.

(i) on the basis of the common knowledge of the worker skilled in the art to which the patent relates.

(ii) as of the date the patent is published.

(iii) having regard to whether or not it was obvious to the skilled reader at the time the patent was published that a variant of a particular element would not make a difference to the way in which the invention works; or

(iv) according to the intent of the inventor, expressed or inferred from the claims, that a particular element is essential irrespective of its practical effect;

(v) without, however, resort to extrinsic evidence of the inventor's intention.

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

Tiger Lily Ventures Ltd. Vs Barclays Capital Inc

DATE OF JUDGEMENT: 01.06.2022
CASE NO: 2021-1107, 2021-1228
CASE TITLE: Tiger Lily Ventures Ltd. Vs Barclays Capital Inc
NAME OF HON'BLE COURT: United States Court of Appeals for the Federal Circuit
NAME OF HON'BLE JUDGE: LOURIE, BRYSON, PROST and LOURIE, Circuit Judges

Important Finding in the Decision: 1. A Trademark is said to have been abandoned if use has been discontinued with intent not to resume the use. Pg. 9, Para 2.

2. Use in emails, communications, business cards etc proves intention to resume the use. Pg. 10, Para 1.

3.Mark with extensive public recognition and renown deserves and receives more legal protection than an obscure or weak mark. Pg. 16, Para 2.

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

Judian Restaurant Co. Ltd. Vs Wei Meng

DATE OF JUDGEMENT: 18.05.2022
CASE NO: T-530-21 [2022 FC 743]
CASE TITLE: Beijing Judian Restaurant Co. Ltd. Vs Wei Meng
NAME OF HON'BLE COURT: Federal Court of Cananda
NAME OF HON'BLE JUDGE: The Honourable Madam Justice Furlanetto

Brief Note on the case: 1. The Petitioner filed Petition seeking declaration of . Canadian Trademark Registration No. TMA1020055, for the trademark JU DIAN & Design [JU DIAN & Design Mark] to be invalid. Para 1

2. Applicant claimed to have operated Restaurant under the name JU DIAN in china. Para 3

3.It was alleged that the impugned registration in Canada has been registered only with a view to sell the registration. Para 3

4.The applicant stated to have started operating in Canada since 2018. Para 15.

5.The Registered Proprietor was asking for payment from Applicant for acquiring right in the registered Trade mark. Para 21

6.The impugned Trademark was declared invalid as there was element of bad faith on the part of registrant. It was registered without having an intention of commercial use. Para 51

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

Apple Inc. Vs European Union Intellectual Property Office

DATE OF JUDGEMENT: 08.06.2022
CASE NO: T‑26/21 to T‑28/21
CASE TITLE: Apple Inc. Vs European Union Intellectual Property Office (EUIPO)
NAME OF HON'BLE COURT: General Court (Sixth Chamber) , Court of Justice of the European Union
NAME OF HON'BLE JUDGE: A. Marcoulli, President, C. Iliopoulos (Rapporteur) and R. Norkus, H. Judges,

Brief Note on the case: 1. The Appeal has been filed by the Applicant namely Apple Inc against order of 4th Chamber, EUIPO. Para 1

2. Three Trademark applications were filed by the Applicant for registration of Trademark THINK DIFFERENT. Para 6

3.The Intervener namely Swatch AG, filed petition seeking revocation of the same. Para 14

4.Vide decision dated 24.08.2018, the cancellation Board revoked the application of the Application. Para 17

5.The Applicant filed appeal against the same before 4th Board. The forth Board also dismissed the Appeal. Para 20

6.Accordingly the subject matter Appeals were filed.

7.The Relevant date for deciding cancellation petition is the date on which cancellation petition were filed. Para 34

8.In cancellation Proceeding, the onus is on the applicant to establish genuine use of mark. Para 60.

9.Genuine use of mark entails whether commercial exploitation is real. Para 63.

10.Statement from legal department of applicant does not have credibility like evidence of third party. Hence are not sufficient to prove user. Para 78.

11.Word THINK DIFFERENT was mentioned on the top of specification, relatively in a smaller font. Hence it can not amount to trademark use. Para 93.

12.Hence the Trademark THINK DIFFERENT was rightly rejected falling under the test of acquired distinctiveness.

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

Mr. Dhananjay Rathi Vs Shree Vasu Steel Pvt. Ltd.

DATE OF JUDGEMENT: 15.06.2022
CASE NO: CS (Comm) 267 of 2022
CASE TITLE: Mr. Dhananjay Rathi Vs Shree Vasu Steel Pvt. Ltd.
NAME OF HON'BLE COURT: Hon'ble High Court of Delhi
NAME OF HON'BLE JUDGE: Hon'ble Justice Ms. Jyoti Singh

Brief Note on the case: 1. Plaintiff filed application under Order 1 Rule 10 CPC for impleadment of Rathi Research Centre and one of the Defendant. Para 1

2.Ex-parte injunction was granted to the Plaintiff vide order dated 28.04.2022. Para 8

3.The Defendant filed application under Order 39 Rule 4 CPC alleging suppression of fact by the plaintiff. Para 9

4.As per MOU dated 26.06.1995 Rathi Research Centre was created and the Defendant was granted right to use the subject matter Trademark. Para 9

5.The Defendant alleged that Rathi Research Centre was necessary party Para 10.

6.Accordingly the Plaintiff filed this application.

7.The Court impleaded Rathi Research Centre in the suit after making an observation that a party , without which suit can not be decided effectively, can be allowed to be impleaded at any stage of the proceeding. Para 15

8.Accordingly Members/Trustees of Rathi Research Centre were impleaded as Defendant in the suit proceeding. Para 19.

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

Ambuja Cements Limited Vs Shiv Kripa Steels and Another

DATE OF JUDGEMENT: 03.06.2022
CASE NO: CS (Comm) 431 of 2022
CASE TITLE: Ambuja Cements Limited Vs Shiv Kripa Steels and Another
NAME OF HON'BLE COURT: Hon'ble High Court of Delhi
NAME OF HON'BLE JUDGE: Hon'ble Justice Ms. Jyoti Singh

Brief Note on the case: 1. Plaintiff filed the subject matter suit on the basis of proprietary right in trademark AMBUJA since the year 1983-1984 in relation to cement and related goods. Para 21

2.The Plaintiff claimed to be registered proprietor of Trademark AMBUJA in class 07,19,39 and 41. Para 22

3.In the year 1997, the Plaintiff got the domain name registered as www.ambujacement.com. Para 24

4.In the month of April 2022, the Plaintiff came across youtube clipping of the defendant as well as trademark application of the Defendant for the trademark SUPER STEEL AMBUJA. However no goods were found. Para 26-28

5.The Defendants were also having domain name www.ambujacementtmt.com. Para 29

6.Trademark application VIRAT AMBUJA of the Defendant was filed as proposed to be used basis. Para 30.

7.The goods of the Defendant were TMT Bars, Stainless steel etc. Para 35.

8.In the facts of the case, ex-parte injunction was granted in favour of the Plaintiff. Para 37.

Ajay Amitabh Suman, IPR Advocate,
Hon’ble Delhi High Court,
ajayamitabh7@gmail.com,
9990389529

Janssen Inc and Actelion Pharmaceuticals Ltd. Vs Saodoz Canada Inc

DATE OF JUDGEMENT: 31.05.2022:
CASE NO: T-549-20 [2022 FC 715]
CASE TITLE: Janssen Inc and Actelion Pharmaceuticals Ltd. Vs Saodoz Canada Inc
NAME OF HON'BLE COURT: Hon'ble Federal Court of Canada
NAME OF HON'BLE JUDGE: Hon'ble Madam Justice Pallotta

Brief Note on the case: 1. Plaintiff namely Jassen sought relief against the Defendant namely Sandoz for infringement of claim 21 to 31 of the subject matter Patent no. 2,659,770 titled “Therapeutic Compositions Comprising a Specific Endothelin Receptor Antagonist and a PDE5 Inhibitor” (770 Patent).Para 5

2.The Defendant Sandoz seeks Health Canada’s approval to sell a generic prescription medication containing 10mg of macitentan as the active ingredient. Para 5

3.It is claimed that this product of Respondent is infringing the subject matter Patent. Now question was this whether product of Respondent fell within claims of the subject matter Patent no. 2,659,770. Para 5

4.770 Patent specification describes the invention as relating to a product containing a compound of formula known as macitentan. Para 17

5.The issues in this action relate to claim construction and validity of the Asserted Claims. Para 29

6.the claims be read in an informed and purposive way, from the perspective of a notional person of ordinary skill in the art or science to whom the patent is addressed (skilled person): Free World Trust v Électro Santé Inc, 2000 SCC 66 at para 44 [Free World]. Para 30

7.Claim construction is a matter of law for the Court to decide: Whirlpool at para 61; Zero Spill Systems (Int'l) Inc v Heide, 2015 FCA 115 at para 41: Para 32.

8.Plaintiff alleged that Defendant's expert conducted his test of obviousness review with hindsight, which is not accepted in law.

9. The Defendant alleged because of prior publication of WO 395, the subject matter Patent is obvious.

10. The Court held that WO 395 contains large number of compounds. It does not indicated as to how a skilled person would select a group of compound fro large number of compounds. Para 197-199

11.The court also held that defendant failed to show that process involved in WO 395 would motivate person skilled in the art to focus on subject matter patented compound namely MACITENTAN. Para 204.

12.The utility of a claimed invention must either be demonstrated or soundly predicted based on the information and expertise available at the material date, which is no later than the filing date: Patent. Para 204.

13.Defendant argued that result conducted on rats may not be translated to human. Hence the impugned Patent does not proved utility. Para 246.

14. The court rejected this argument after observing that that the line between sound prediction and demonstrated utility is vague, however there is a point where the cumulative weight of evidence supporting a sound prediction can reach a sufficient level to establish demonstrated utility: Para 246.

15.The Defendant pleaded that the specification does not enable the skilled person to practice the subject matter of the claims 21-25 in order to treat the disease. The insufficiency of disclosure in specification was not explained by the Defendant as to what was missing in the specification. Hence this argument was rejected. Para 255

16.Hence Plaintiff was granted the relief of declaration of Patent Infringement against the Defendant.

Ajay Amitabh Suman, IPR Advocate,
Hon’ble Delhi High Court,
ajayamitabh7@gmail.com,
9990389529