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Bulletin 8 | Dec 2023

Topical Updates: To IP & Beyond

Snapshots

In a suit filed against rogue websites, the Court granted a ‘Dynamic+ Injunction’ (devised in Universal City Studios LLC & Ors. v. Dotmovies.baby & Ors.) and restrained the websites from using, in  any manner, the Plaintiffs’ copyrighted works i.e., films and TV shows, including its future works. The Court noted the global positive impact that the Dynamic+ Injunction remedy has had on piracy reduction, whereby suspension of rogue domains has redirected viewers to legitimate platforms (for instance the 2023 World Cup Cricket finals with over 5.3 crore logins on an OTT platform). The Court thus directed the blocking of the Defendant websites, their mirror/redirect/alphanumeric/brand variations and any additional websites.

In dismissing an appeal under S. 117A of the Patents Act, 1970 for want of territorial jurisdiction, the Court adopted the view of its coordinate Bench in Dr. Reddy’s Laboratories Limited v. The Controller of Patents and held that the High Court which can entertain such an appeal shall be determined by the place of filing of the Patent application, i.e., Bombay. The Court rejected the argument linking jurisdiction to the location of the Controller who passed the impugned order, and observed that the Patents Act does not identify the High Court which can exercise jurisdiction under S.117A of the Act. Accordingly, Rule 4 of the Patent Rules was relied on, stipulating that the appropriate office “for all proceedings under the Act” (including an appeal) shall be the initial Patent Office where the application is filed.

A writ petition was filed seeking a ‘gag’ order directing the MIB to prevent social media influencers from posting reviews of the movie “Aromalinte Adyathe Pranayam” for at least seven days post-release. While granting time to MIB to investigate the issue, the Court noted the trend of non-journalist influencers posting malicious content online. Emphasizing that reviews should inform, not harm, the Court has directed Police officials to implicitly comply with previously mandated protocols of monitoring online platforms to curb circulation of such content, and to take action under the IT Act without delay.

The Court rejected an application under S.124 of the Trade Marks Act, 1999, seeking permission to file a rectification petition against Parle’s mark ‘FABIO’. The dismissal resulted from the Plaintiff’s failure to assert the invalidity of the said mark in the Plaint and Replication, which were based on the mark ‘FAB!O’ instead. The Court clarified that for S. 124 to apply, the Defendant must invoke the registration of its mark as a defence under S. 30(2)(e), and subsequently, the Plaintiff must plead the mark’s invalidity. As the plaintiff did not establish a prima facie tenable challenge to ‘FABIO’, the application failed.

The Court sustained the maintainability of an application for additional documents under Order XI Rule 1(10), CPC, in a rectification petition under S. 57 of the Trade Marks Act. Held, Rule 7(xiii) of the IPD Rules specifically makes the Commercial Courts Act (“CCA”) (and its corresponding amendments to the CPC) applicable to original petitions, including rectification petitions. The Court rejected the argument that Order XI Rule 1(10), CPC as amended by the CCA, is inconsistent with the IPD Rules and clarified that the said Rules do not proscribe taking of additional documents on record.

Significant Judgments

ANAND INFOEDGE PVT. LTD V. NITIN BATRA & ORS.

NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI

Appeals filed by three Corporate Debtors against an order passed by the National Company Law Tribunal (NCLT), were dismissed by the appellate authority (NCLAT).

The NCLT order was challenged on three grounds viz., (i) Whether the joint insolvency plea against separate corporate entities is maintainable; (ii) the application did not meet the threshold criteria under S. 7(1), IBC; (iii) Whether each allottee has to prove its eligibility qua debt, default and limitation. The NCLAT held that consolidated insolvency proceedings against one or more Corporate Debtors who have come together to develop a project, can be initiated. Further, the requirement of minimum 100 allottees under S.7(1) is to be met at the date of filing of the application, therefore the subsequent settlement by allottees was held to be inconsequential.

In relation to the third ground, it was held that proceedings under S. 7 can commence even if claims of some allottees are time barred or below the threshold of Rs. 1 Crore:

“Application under Section 7 of the Code triggered when default of Rs. 1 Crore qua some of the applicant or some other financial creditors is fulfilled, Insolvency Resolution Process under Section 7 can commence.”

DELHI HIGH COURT

An application under Order XXVI Rule 10A, CPC filed by the Plaintiff in a patent infringement suit, was dismissed on the ground that it sought to gather the “best evidence” through the appointment of a court commissioner for preparing technical reports, mapping claims of the suit patent to the features of the alleged infringing products. Held, granting such a request would amount to aiding the case of one party, therefore destructive to principles of judicial discipline. The Court clarified that the provision is invocable only when it is of the view that – (i) determination of any issue in the suit requires scientific investigation, (ii) such scientific investigation cannot be conveniently conducted before the Court, and (iii) it is expedient in the interests of justice to issue a commission for the same.

37. Order XXVI Rule 10A can never be pressed into service by a party who asserts that it is in possession of sufficient evidence to support its case and only seeks to marshal better evidence. The provision is intended to assist the Court, not to assist either party.

MADRAS HIGH COURT

A batch of writ petitions challenging the constitutionality and validity of the Tamil Nadu prohibition of Online Gambling and Regulation of Online Games Act, 2022, were partly allowed. The Court held that the State has authority to prohibit online games of chance and regulate online games of skill, thus the Act in its entirety is not ultra vires. However, the Court read down the definition of ‘game of chance’ under S. 2(l)(iv) of the Act, to exclude games like rummy and poker (also when played online). 

The Court, in doing so, rejected the State’s argument that in an online game of rummy and poker, the software/bots know all the cards, and held that the same is based on an apprehension without any substantive evidence. As per the Court:

The apprehension expressed by the State that bots may be used or the dealer (software) would know the cards are without any substantive material. In view thereof, the Schedule under Section 23, incorporating rummy and poker as games of chance, is set aside.
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