2015!!! Indeed a remarkable year, which witnessed the good as well as the not so good!
This year 2015 has been a stepping stone in the success of S.S. Rana & Co., where we not only successfully completed 26 glorious years of our hard work and commitment since 1989, but we were also awarded with the ISO 27001:2013 Information Security Management Certificate from DNV-GL (a European based International Certification body) marking our commitment towards best practices aimed at improving our business performance and ensuring the highest degree of data security and confidentiality for our clients also.
We are now one of the few law firms in India to have achieved recognition and certification of the ISO 27001:2013. Benefits of implementing the ISO27001:2013 is commitment at the organizational level, compliance at the legal level, risk management at the operating level, credibility and confidence at the commercial level, reduced costs at the financial level and improved employee awareness at the human level.
In other news, this year saw the Indian Prime Minister Narendra Modi government’s first full year in office.
The former half of the year witnessed the Nestle Maggi fiasco, which brought under the spotlights the food laws and regulations in India. The latter half of the year was bombarded with more grave contentious issues ranging from alleged religious intolerance in India and the cacophonous and steamy beef ban. The year end was marked by altercations on the demand to bring changes in the Juvenile Justice Bill and Indian Prime Minister Narendra Modi’s impromptu visit to Pakistan.
The year also saw many significant IP developments, for instance, the most awaited National IPR Policy for which comments were invited and which is soon expected to be tabled in the Cabinet for approval, the release of Draft Trademark (Amendment) Rules and the Draft Patent (Amendment) Rules inviting comments of the general public and stakeholders, and the consistent efforts by the Indian IP Office to digitize IP proceedings and prosecution, and reduce and gradually eliminate the practice of physical filing at the Office. There were also attempts to some major amendments through the Negotiable Instruments (Amendment) Ordinance, 2015 (which lapsed and the Negotiable Instruments (Amendment) Second Ordinance, 2015 was consequently promulgated), the Arbitration and Conciliation (Amendment) Ordinance, 2015 etc. Also, the brand new Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Ordinance, 2015 was introduced to constitute Commercial Courts in India to specially try and hear commercial disputes.The Indian Courts also rendered some noteworthy judgments and observations like in the Cipla- Roche infringement case, High Court’s notice regarding working of patented inventions, the Supreme Court’s decision on jurisdiction in trademark cases and claiming of no trademark rights on names of Holy books in IP cases etc. which we will be discussing in detail in the newsletter. Apart from IP laws, the Newsletter will also deal with corporate laws and other related legal developments in India.
BBC’s Documentary ‘India’s Daughter’ removed from YouTube for Copyright Violation [March 15, 2015]
BBC’s documentary ‘India’s Daughter’ was based on the highly infamous gang-rape of a 23-year-old Indian medical student on December 16, 2012 in a moving bus in New Delhi, known as the Nirbhaya gang-rape. The documentary came into controversy after the statements of one of the convicts, Mukesh Singh, made in his interview came out. The documentary had controversial derogatory remarks against women which were made by the convict’s counsel AP Singh and ML Sharma.
According to the Indian government, the documentary was “not suitable for unrestricted public view”, and therefore, banned. The ban caused an uproar among a section of people in India, and two public interest litigations (PILs) for revocation of the ban on the documentary’s telecast were filed before the Supreme Court of India.
Despite the ban, numerous copies of the documentary, taped from BBC Four’s TV broadcast were circulated on YouTube in India and abroad. Google had to comply with the government’s requests and blocked copies of the film on the video-sharing website in India.
BBC, however, launched a much more severe global ban, using YouTube’s more robust ContentID verification system to expunge almost all copies of the film, viewable from anywhere in the world, from YouTube, citing copyright infringement.
IPL Opening Ceremony Impeded by IPRS Copyright Issue; matter resolved later!
On April 08, 2015, all cricket lovers geared up for the 8th Season of the Indian Premier League (IPL) where various Bollywood stars were present to light up and fill glamor in the opening ceremony at the Salt Lake Stadium at Kolkata. The Indian Performing Right Society (IPRS), which is an organization that works to protect the rights of artists and has 3,500 authors, lyricists, music composers, publishers and film producers as members, had served a legal notice on the IPL Governing Council, the West Bengal government and the event managers.
The licenses for the music played or to be played at the IPL matches were claimed to have been procured by the organisers (DNA Entertainment Networks procured licences). However, according to Mr. Basu, regional head of IPRS, mandatory Public Performance Licence for playing music was not procured, and the organizers were “reluctant” to pay the fees for playing music. Consequently, notices were sent to the Organizers (Encompass Events Pvt. Ltd.) of the opening ceremony, the IPL Chairman Mr. Biswal, and the CEO of the Salt Lake Stadium for payment of ‘Performance License (Royalty) Fees’ for playing music as per the provisions of the Copyright Act, 1957. The said notice was sent under Sections 30 and 51 of The Copyright Act, 1957.
The matter was resolved when the organizers paid the license fees. The organizers were given a huge concession, details of which were not disclosed.
This was not the first time the IPRS had served a legal notice on an Organization. Many have been challenging the authority of the IPRS in charging astounding amounts as royalty fee for playing music within their premises. Interestingly, a Judicial probe into the functioning of IPRS had ordered upon the complaints of various composers including prominent names like Javed Akhtar, Lalit Pandit and Milind Srivastava on the ground that the Society denied composers with their dues despite collecting hefty license fees. The defense explored by the IPRS against this order was that it was no longer a Society under Section 33 of Copyright Act as its registration was not renewed.
UNESCO celebrates World Book and Copyright Day on April 23
The world widely observed the World Book and Copyright Day on April 23, 2015, an International day recommended by the United Nations’ Educational, Scientific and Cultural Organization (UNESCO) General Assembly to recognize and celebrate creators of intellectual property and copyright products.
In this context, the Prime Minister of India, Shri Narendra Modi, spoke as the chief guest at the Golden Jubilee celebrations of the Jnanpith Awards on April 25, 2015 and stated his opinion that one “may depend on Google guru but you must not forget that books are the biggest inspiration to living a good life. We cannot know what the future holds in store for us without reading.”
“We must redouble efforts to promote the book, the pen, the computer, along with all forms of reading and writing, in order to fight illiteracy and poverty, to build sustainable societies, to strengthen the foundations of peace”– UNESCO
Supreme Court of India decides on Jurisdiction for filing Trademark and Copyright
In the case Indian Performing Rights Society Ltd. v. Sanjay Dalia & Anr. (July 01, 2015), the Hon’ble Supreme Court of India ruled on the issue of territorial jurisdiction for filing of Trademark and Copyright cases. The Supreme Court primarily dealt with the question that in cases where the cause of action arises at a place where the Plaintiff had an office (head or subordinate), can they sue in another jurisdiction?
It was held that these suits could be instituted only in the District Court that exercised jurisdiction over the place where the cause of action (in whole or in part) arose, if the Plaintiffs instituting the suit had an office in that jurisdiction.
“If the interpretation as suggested by the Plaintiffs is accepted, several mischiefs may result, intention is that the Plaintiff should not go to far flung places than that of residence or where he carries on business or works for gain in order to deprive Defendant a remedy and harass him by dragging to a distant place.
If such an interpretation is permitted, as rightly submitted on behalf of the Defendants/Respondents, the abuse of the provision will take place. Corporations and big conglomerates etc. might be having several subordinate offices throughout the country.
The avoidance of the counter mischief of the Defendant is also necessary while giving remedy to the Plaintiff under the provisions in question.”
Supreme Court of India
Therefore, if the Plaintiff carries on business or has his principle place of business or works for gain at a place where the cause of action also arose, the Plaintiff has to file the suit at that place and not at its branch office in a different location.
Yoga – India’s Gift to the World!
International Day of Yoga celebrated on June 21
In 2014, Indian Prime Minister, Narendra Modi during his UN General Assembly Speech had called for observing International Day of Yoga and remarked it as “India’s Gift to the World”. Pursuant to his proposal, the UN on December 10, 2014 declared June 21 as “International Day of Yoga”, recognizing that Yoga provides a holistic approach to health and well-being.
The Rajpath became Yogpath on June 21, 2015 when 35, 985 participants from 84 nationalities had performed asanas at one venue for 35 minutes with the Indian Prime Minister, Narendra Modi.
Yoga & Copyright
The specific question of whether copyright subsists in yoga asanas was discussed in the U.S. in Bikram Yoga Case where the Court held that yoga asanas do not satisfy the requirements of a dramatic work and that it cannot be considered choreography because of the simplicity of its sequences.
Indian Court’s Stance on Copyright over YOGA- CS(OS) 2252/2011
In the case Institute for Inner Studies v. Charlotte Anderson, the Delhi High Court ruled that the Plaintiff could not state that copyright protection for the performance of Pranic Healing techniques can be accorded on the basis of the copyright claim in the book describing, illustrating and compiling the exercises or Asanas of Pranic Healing. The Court had further held that Pranic Healing cannot be accorded copyright protection as a dramatic work.
Supreme Court of India held Section 85 of the Trade Marks Act, 1999 Unconstitutional
The Hon’ble Supreme Court of India, on July 27, 2015, upheld the judgement dated March 10, 2015 of the Hon’ble Madras High Court in writ petition, W.P No. 1256 of 2011, declaring Section 85 of the Trade Marks Act, 1999, regarding the qualification and selection of members appointed to the Intellectual Property Appellate Tribunal (IPAB), as unconstitutional, being contrary to the basic structure of the Indian Constitution.
The present writ petition was filed challenging the constitutionality of the qualification and selection of the Chairman, Vice Chairman, a judicial member and Technical members of the IPAB. The Constitution of the Committee was stated to be loaded in the favor of Executives, which is not permissible by law. The Ld. Division Bench opined that the procedure did not involve any “approval”, being an abuse to the separation of powers, independence of the judiciary and basic structure of the Constitution. It was further held that the recommendation of the Chief Justice of India to the post of Chairman should be given due consideration by the Appointment Committee of the Cabinet and the process does not involve any “approval”. The court relied on S.P.Sampath Kumar Vs. Union of India (AIR 1987 SC 386) and Union of India Vs. R.Gandhi, President, Madras Bar Association, ((2011) 10 SCC 1), wherein it was held that no matter how high post an Executive may hold, the role of a judicial member, being different, such a person cannot be asked to exercise the function particularly as a Judicial Member without any experience.
Consequently, the Union of India filed a Special Leave Petition (SLP) to Appeal against the judgement dated March 10, 2015 in W.P No. 1256 of 2011 passed by the Division Bench of the Madras High Court, praying for the said judgement to be set aside. However, the Supreme Court of India disposed off the SLP by the following order simply stating: “We do not find any legal and valid ground for interference. The special leave petition is dismissed.”
No Trademark Rights over Names of Holy Books
On October 27, 2015, the Supreme Court of India ruled in Lal Babu Priyadarshi v. Amrit Pal Singh that no person can claim exclusive rights over the name of a holy or religious book as a trademark for the goods or services marketed by him.
In this case, the Appellant had made an application to the Registrar of Trade Marks to register the trademark “RAMAYAN” with the device of crown in class 3 in respect of incense sticks (agarbattis, dhoops) and perfumeries etc. Pursuant to it, the Respondent filed a Notice of Opposition against the aforesaid trademark claiming that the impugned mark, being the name of a religious book, could not become the subject of monopoly for an individual. The Asst. Registrar of Trade Marks dismissed the Opposition of the Respondent holding that the impugned trademark was capable of distinguishing the goods and was also not included in the list of marks not registrable under the Act. Aggrieved, the Respondent preferred an appeal before the Intellectual Property Appellate Board (IPAB), which set aside the order of the Asst. Registrar of Trade Marks. Thereafter, the Appellant preferred an appeal to the Supreme Court.
While deciding the issue whether the registration of the word “RAMAYAN” as a trade mark, being the name of a Holy Book of Hindus, is prohibited under Section 9(2) of the Trade Marks Act, 1999?, the Supreme Court of India observed and held as under:
- In Clause 13.3 of the Eighth Report on the Trade Marks Bill, 1993, the Parliamentary Standing Committee expressed its opinion that any symbol relating to Gods, Goddesses, and places of worship should not ordinarily be registered as a trademark. However, the Committee did not want to disturb the existing trademarks by prohibiting their registration as it will result in chaos in the market. At the same time, the Committee trusted that the Government will initiate appropriate action if someone complains that a particular trademark is hurting his religious susceptibilities. When this report was presented on April 21, 1994, the Appellant’s trademark had not been registered and the application filed by the Respondent opposing its registration was dismissed only on March 31, 2004 by the Asst. Registrar of Trade Marks.
- The word “RAMAYAN” represents the title of a book written by Maharishi Valmiki and is considered to be a religious book of Hindus in India. Thus, using exclusive name of the book “RAMAYAN” for getting it registered as a trademark for any commodity could not be permissible under the Act. If any other word is added as suffix or prefix to the word “RAMAYAN” and the alphabets/ design/ length of the words is same as of the word “RAMAYAN”, then the word “RAMAYAN” may lose its significance as a religious book and it may be considered for registration as a trademark.
- The word “RAMAYAN” is being used as a mark for similar products by more than 20 traders in Patna and in different parts of the country, therefore, it has become public juris and common to the trade.
- There are many holy and religious books like the Quran, Bible, Guru Granth Sahib, Ramayan etc. to name a few. The answer to the question as to whether any person can claim the name of a holy or religious book as a trade mark for his goods or services marketed by him is clearly ‘NO’.
The judgment of the Supreme Court is an important one as it authoritatively held that the name of a holy book or religious texts like The Quran, The Bible, The Guru Granth Sahib, The Ramayan etc. cannot be monopolized by a person as a trademark for his goods or services marketed by him.
Disclosure: Our firm was the instructing counsel on behalf the Respondent in this case.
CGPDTM releases Draft Trade Mark (Amendment) Rules, 2015
The Ministry of Commerce and Industry, Government of India, published the Draft Trade Marks (Amendment) Rules, 2015 on November 19, 2015, seeking to replace the existing Trade Marks Rules, 2002.
The Ministry has invited public comments and objections on the Draft Rules which are to be submitted to the Additional Secretary to the Government of India, Ministry of Commerce and Industry, Department of Industrial Policy and Promotion by January 1, 2016.
Few notable highlights of the Draft Rules include:
- an increase in the Official fee for filing trademark applications and other requests with the Trade Marks Registry – for example, the official fee for filing a trademark is proposed to be increased from INR 4000 (Approx. USD 60*) to INR 8000 (Approx. USD 120*)
- expedited processing of trademark applications
- a statement of User with affidavit and supporting documents in the trademark application in case the use of the mark has been claimed prior to the date of application
- Wider powers of the Registrar of Trade Marks, such as determination of well-known marks by the Registrar pursuant to a request on prescribed Form and payment of fee
- increased fee for physical filing of trademark applications etc.
PATENTS & DESIGNS
Guidelines for Examination of CRIs published by IPO and later temporarily suspended!!
On August 21, the CGPDTM (Controller General of Patents, Designs and Trademarks) published the Guidelines for Examination of Computer Related Inventions (CRIs).
In the said notice, Chapter 08.03.05.10 of the Manual of Patent Office Practice and Procedure comprising the provisions pertaining to Section 3(k) of the Patents Act were deleted and replaced as under:
“For procedure of examination of patent applications relating to the field of computer related invention under Section 3(k), the provisions of Guidelines for Examination of Computer Related Inventions shall be applicable.” However, the CGPDTM on December 14, 2015 passed an order to put on hold the said Guidelines. Till the next order, Chapter 08.03.05.10 of the Manual of Patent Office Practice and Procedure, containing provisions pertaining to section 3 (k) of the Patents Act 1970 shall continue to be applicable.
Delhi High Court issues Notice regarding Working of Patented Inventions
On September 01, 2015, the Delhi High Court issued a notice to the Indian government on a Public Interest Litigation (PIL) filed by Mr. Shamnad Basheer with regard to the “working statement” of patented inventions in India.
Furnishing such information is important mainly during compulsory licensing cases in order to establish whether the patented invention has fulfilled the reasonable requirements of the public by, inter alia, selling the patented product at an affordable price. This information also played a pivotal role in the compulsory licensing dispute between Bayer Corporation vs. Natco Pharma Ltd.
|According to Section 146(2) of the Patents Act, 1970 read with Rule 131 of the Patent Rules, 2003, every patentee and every licensee has to make an annual disclosure (Form-27) as to how far and to what extent the patent has worked on a commercial scale in India.|
The Petitioner had prayed that the Hon’ble Court may, in public interest, issue a Writ of Mandamus, or any other appropriate writ or order directing the authorities to, inter alia, strictly enforce compliance with Section 146(2) read with Rule 131(1) of the Patents Act, 1970 and Rules thereunder in relation to disclosure of information on commercial working of patent by every patentee and licensee.
The Petitioner had also submitted supporting statistical data with regard to non-compliance and defective declarations of working of patented inventions along with other relevant supporting documents in the PIL, according to which approximately 35% of patentees did not disclose any working information for the years 2009 to 2012. Also a significant number of defective declarations were submitted which were incomplete, incomprehensible or inaccurate.
The government has accepted the said notice, and the case is pending further hearing on February 08, 2016.
Draft Patent (Amendment Rules), 2015 Published by the Ministry
The Ministry of Commerce and Industry, Government of India published the Draft Patent (Amendment) Rules, 2015 on October 29, 2015, inviting objections and comments from the public by December 11, 2015.
Few notable highlights of the Draft Rules are as under:
- Fee once paid even the amount in excess of requisite fee, in respect of any proceedings shall not be refunded irrespective of whether the proceeding has taken place or not. However, if the Controller is satisfied that during online filing process, fee has been paid more than once for the same proceeding, additional fee shall be refunded;
- The applicant may use Form-30 where no form is specified;
- A request for examination filed may be withdrawn by the applicant in Form-29 before the application is referred to the examiner and such request for examination shall be deemed to have been not filed;
- An applicant may file a request for expedite examination in Form-18A alongwith prescribed fee on the following grounds:
- that the applicant in the corresponding International application has designated Indian Patent Office as the International Searching Authority or International Preliminary Examining Authority;
- that the applicant or his assignee or his prospective manufacturer has already started manufacturing the invention in India or shall commence within two years of grant of patent;
- The hearing may be held through video-conferencing or other communication device and in such cases written submission and relevant documents may be filed within fifteen days from the date of hearing.
Cipla Infringes Roche’s Anti-Cancer Drug Patent
The Division Bench of the Delhi High Court ruled in F. Hoffmann-La Roche Ltd. & Anr. v. Cipla Ltd. (RFA (OS) 92/ 2012) and Cipla Ltd. v. F. Hoffmann-La Roche Ltd. & Anr. (RFA (OS) 103/ 2012) that Cipla has infringed Roche’s patent in a lung cancer drug sold under the trade name Tarceva. Reportedly, Roche was selling its drug Tarceva at INR 4800 (Approx. USD 72) per tablet whereas Cipla was marketing a generic version of the drug under the name Erlocip at the cost of INR 1600 (Approx. USD 24) per tablet.
While arriving at its decision, the Division Bench made reference to a plethora of judgments dealing with the nuances of Patent Law including “inventive step”, “disclosures to be made under the Law” etc. and made the following observations:
- That it was not in dispute that Roche’s unsuccessful patent application in India (DEL ‘507) was for a Polymorph B form of Erlotinib Hydrochloride, a claim that had been rejected by the Indian Patent Office in 2008 with observations on evergreening and structural similarities between Roche’s patent Nos. IN 196774 and DEL ‘507.
- That the process claims for making Polymorph B in DEL ‘507 had already matured into Patent No. 231102 and only the product claims pertaining to Polymorph B were refused.
- That the purpose of Section 3(d) of the Patents Act, 1970 is to encourage incremental innovation in pharmaceuticals. It lays down a threshold for what subject matter would qualify as the “same” or “known” substance and what would qualify as a “new” substance. The purpose of this qualification is that when something is same/ known substance, then the derivatives of such a substance as enumerated in the Explanation to Section 3(d) would be covered under the same protection that exists for the known substance (which could also mean that if the known substance is not covered by a patent then the derivative would not be covered as well).
- That while the present patent covers Erlotinib Hydrochloride (or polymorphs A+B of the same), the rejection of the patent application for Polymorph B (DEL ‘507) by the Indian Patent Office leads to a direct conclusion that there was a lack of sufficient matter to suggest that Polymorph B qualified as a “new product” for consideration under Section 2(1)(j) of the Patents Act for patentability and should therefore be regarded for all practical purposes as the old product itself i.e. Polymorphs A+B.
In view of the aforesaid, the Division Bench of the Delhi High Court reversed the order of the Single Judge and held that Cipla has infringed the said patent of Roche, and directed Cipla to render its accounts concerning the manufacture and sale of its generic drug Erlocip and also imposed a cost of INR 500,000/- on Cipla. However, the injunction prayed for by Roche against Cipla in India was not granted considering that the life of the said patent would expire in March 2016.
This is one of the rare cases where a final decision of the court was rendered on patent infringement after a conclusive trial. The decision comes as a relief to multinational pharmaceutical companies in India, and is a victory for encouraging research and development of new medicines as opposed to criteria such as ‘public interest’ and ‘affordability of medicines’. However, whether or not Cipla files an appeal in the Supreme Court of India against the judgment dated November 27, 2015 of the Division Bench of the Delhi High Court, is surely being kept on watch with bated breath.
Supreme Court of India held Sectison 66A of IT Act Unconstitutional !
In the case Shreya Singhal v. Union of India, the Supreme Court of India gave a landmark judgment on March 23, 2015 and struck down Section 66A of the Information Technology Act (“IT Act”). Section 66A of the IT Act defined the punishment for sending “offensive” messages through a computer or any other communication device. Conviction under the said provision could land a person behind the bars for a period of three years along with fine.
The Apex Court of India highlighted various aspects of freedom of speech and expression and the legal implications on freedom if operation of Section 66A continued. The Court observed that the provision did embody a legislative intent which gave abundance liberty of its abuse by the Government. The harsh implication of the law can be accentuated by an incident of 2012 when two girls from Mumbai were booked and arrested under the impugned provision. Reportedly the alleged offence of the girls were that one of the girls among them had only questioned the shutting down of Mumbai on account of Shiv Sena Leader Bal Thackeray’s funeral on her Facebook page whereas the other girl had merely liked it.
The Judgment certainly eased the freedom of free speech and expression from the treacherous shackles of Section 66A which limited the ideas and expression on the internet and social media by way of indeterminate clauses.
Pecuniary Jurisdiction of Delhi High Court enhanced to INR 20 Million !
The Delhi High Court (Amendment) Bill, 2015 received the assent of the President of India on August 10, 2015, and the corresponding Act was brought into force from October 26, 2015. The Act gave a big leap to the pecuniary jurisdiction of the Delhi High Court from INR 2 Million (USD 29,960*) to INR 20 Million (USD 299,601*).
Negotiable Instruments (Amendment) Ordinances promulgated by the President of India in 2015 !
The Negotiable Instruments (Amendment) First Ordinance, 2015 was promulgated by the President of India on June 15, 2015, which lapsed on August 31, 2015 on account of not being passed by both the Houses of the Parliament. Thereafter, on September 22, 2015, the President of India re-promulgated the Negotiable Instruments (Amendment) Second Ordinance, 2015. The second Ordinance has been deemed to come into effect from June 15, 2015. The Ordinance seeks to amend certain provisions of the Negotiable Instruments Act, 1881, notably the jurisdiction in cheque bounce cases which, vide the amendment, is where the payee has the bank account. The Second Ordinance has been passed by both the Houses of the Parliament.
Arbitration (Amendment) Ordinance Passed
The President of India also promulgated the Arbitration and Conciliation (Amendment) Ordinance, 2015 on October 23, 2015, seeking to amend the Arbitration and Conciliation Act, 1996. The major highlights of the Ordinance include interim relief for appointment of an arbitrator in international commercial arbitrations, and that the jurisdiction of International Commercial Arbitrations now vests with High Courts of States only. The Ordinance is likely to radically overhaul the arbitration landscape in India.
Commercial Courts established in India !
Continuing the streak of major Ordinances, the President of India further promulgated the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Ordinance, 2015 on October 23, 2015. The Ordinance is aimed to provide speedy settlement of commercial disputes by constituting Commercial Courts, Commercial Division and Commercial Appellate Division in the state High Courts for adjudicating Commercial Disputes of Specified Value, which shall not be less than INR 10 Million (USD 149,992*) or such higher value as may be notified by the Central Government and for matters connected and incidental thereto. Pursuant to this Ordinance, all suits and applications, including Intellectual Property Rights disputes and the ones under Arbitration and Conciliation Act, 1996 relating to commercial disputes of such specified value pending in the High Court or any Civil Court in any district, shall be transferred to the Commercial Division or Commercial Court as the case may be.
Delhi High Court stayed transfer of pending IPR cases to Lower Courts
Pursuant to the Delhi High Court (Amendment) Act, the pecuniary jurisdiction of the Delhi High Court was raised from INR 2 Million (USD 29,960*) to INR 20 Million (USD 299,601*). As a result, all suits valued below INR 20 Million (USD 299,601*) started being transferred to the lower courts for lack of pecuniary jurisdiction of the Delhi High Court. However, in Vifor (International) Limited vs. The Delhi High Court and Asian Patent Association (Indian Group) vs. Registrar General, Delhi High Court, the Delhi High Court, vide its order dated December 03, 2015, has stayed the transfer of pending IPR cases to Lower Courts irrespective of their pecuniary value.
The two writ petitions (filed by Vifor International Limited and Asian Patent Association (Indian Group)) were filed in light of the sudden transfer of IP cases valued below INR 20 Million being made by various judges of the Delhi High Court for lack of pecuniary jurisdiction, and in light of the Proviso to Section 7 of the new Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Ordinance, 2015.
Contentions of the Petitioners
- As per various provisions of the five IP Statutes namely, the Patents Act, 1970, Trade Marks Act, 1999, Copyright Act, 1957, Designs Act, 2000 and The Geographical Indications of Goods (Registration and Procedure) Act, 1999, a suit would not lie in any Court inferior to a District Court.
- Proviso to Section 7 of the Ordinance would show that all suits and applications relating to commercial disputes stipulated by an Act lie in a Court inferior to a District Court, would pertain to the aforesaid Statutes.
- In case any suit arising out of the aforesaid five IP Acts has already been filed on the Original Side of the High Court, the same is to be heard and disposed of by the Commercial Division of the High Court as per the proviso to Section 7 of the Ordinance. Thus, pending suits arising out of the said five Statutes are to be tried by the Commercial Division of the High Court even if their value is less than INR 10 Million (USD 1,49,800*).
- Additionally, in case an application for amendment of the plaint is filed, the respective Single Judges must hear and consider the same in accordance with law, as there are decisions that an amendment application can be entertained even if the jurisdictional value of the Court has changed (increased or decreased), and such a direction is required as amendment applications are not being accepted by the Delhi High Court’s Registry.
COMPAT sets aside CII’s Order against BCCI
The Competition Appellate Tribunal, on February 23, 2015, had set aside an order of the Competition Commission of India (CCI) against the Board of Control for Cricket in India (BCCI) alleging abuse of dominance on its part. In its order dated February 08, 2013, the CCI had imposed a penalty of INR 522.4 Million (Approx. USD 7.83 Million*) on BCCI after finding it guilty for indulging in anti-competitive practices in organization and hosting of the Indian Premier League.
The BCCI challenged this order primarily on the grounds of violation of the principles of natural justice contending that the information relied upon by the CCI were available in the public domain and, therefore, were of no evidentiary value without further proof.
The COMPAT, deciding in favour of the BCCI, held that the CCI had relied upon viewership data and advertisement rates obtained from unverifiable and unreliable newspaper reports and articles available on a website, and hence, the findings recorded by the CCI on the issue of abuse of dominance were legally unsustainable, and the impugned order was set aside.
Elevation in Service Tax in India !
The rate of Service Tax in India saw a hike from 12.36% to 14% in the Budget 2015 which was made effective from June 1, 2015. This was done with an intention to facilitate a smooth transition to the Goods and Services Tax (GST) regime which the Government aims to implement from April 2016. Once implemented, the GST will subsume service tax, excise and other local levies.
The Departure and Return of Maggi
Tragedy struck hard in India when various states across the country imposed a ban on the sale of India’s most popular and endeared instant noodles, Nestle’s Maggi Noodles, when it was found by the Food Safety and Drug Administration (FSDA) authorities that a few samples of Maggi had lead beyond permissible limits and the presence of Monosodium Glutamate (MGS) in spite of the declaration on the packet stating ‘NO MSG’.
The Food Safety and Standards Authority of India (FSSAI), vide its Order dated June 2, 2015, ordered a withdrawal and recall of all the variants of Maggie Noodles from the market finding that the same were unsafe and hazardous for human consumption, and ordered Nestle to stop further production, processing, import, distribution and sale of the said product. This Order was subsequently challenged before the Bombay High Court which lifted the ban on August 13, 2015 holding that the FSSAI’s order was “arbitrary, unjust and violative of Article 14 of the Constitution.” Meanwhile, a retesting was ordered to be conducted within 6 weeks keeping in mind public interest and public health.
Following the aforesaid order, Maggi was relaunched in the market in early November. Meanwhile, the Order of the Bombay High Court lifting the ban on sale of Maggi Noodles has been challenged by the FSSAI with the Supreme Court of India, and the Apex Court has issued notice of the appeal to Nestle in December. The said appeal is currently pending.
|* All currency conversions @ 1 USD = 66.76 INR|
Coffee with HR: A People Vision
As 2016 is knocking round the corner, IPConnect wishes to take its readers on a tour of the HR initiatives taken in S.S. Rana & Co. in 2015. We at S.S. Rana & Co. have always focused on ongoing workplace developments, whether through engagement or by awareness.
Our firm’s Vidya Darshan Rana Charitable Trust has always been committed to adopt the ways to help needy people. As a part of its social responsibility Vidya Darshan Rana Charitable Trust and S.S. Rana & Co. extended support to needy under its campaign “Sunny Winter Week” by distributing woolen blanket, sweater, jacket, shawls on January 10, 2015.
S.S. Rana & Co.’s Green Policy Committee has always been committed to adopt policies that are environment friendly so at to protect and conserve our vulnerable natural resources. We always endeavor to implement eco-friendly measures in our office, as well as surroundings so as to bring down the wastage and minimize the risks such as ozone depletion, greenhouse effect, global climate changes and/or global warming.
Taking cue on from this year’s theme and to raise awareness we all celebrated June 5th 2015 World Environment Day, firstly by wearing green (the official color of the attire for the day was “Green”). The evening snack that was arranged for the employees also comprised all green fruits. The Senior Partners of the firm as well as other took the time out to put plants in and around the office premises.
On December 17, 2015, we declared our office premises as “Tobacco Free Workplace & No Smoking Premises” where we encouraged our employees to quit smoking and spread awareness to not smoke in the office premises.
Taking cue from the Delhi Government’s initiative to reduce vehicle pollution in New Delhi, the firm is encouraging the employees to car pool, walk and cycle to travel if possible in the way to office.
High on Sportsman Spirit
S.S. Rana & Co. has always been an active participant in various sports and cultural corporate events to promote its employee interests and hobbies in a healthy manner.
When Airtel Delhi was hosting its Half Marathon, the firm was not far behind. The firm has been participating in the Airtel Delhi Half Marathon since the last 5 years, and its feat was repeated this year as well with multiplied zeal and excitement.
The year saw the sports teams of the firm win accolades in various corporate sporting events, being an inspiration for the firm and having brought a sense of pride by winning and bringing up the firm in news for competing in national level cricket tournaments. Mr. Rupin Chopra, Associate Advocate at the firm, showed his cricket skills in the 26th All India Lawyer Cricket Tournament and we are proud of him that at present he is representing the Cricket Indian Lawyer Team in Lawyer’s World Cup being played in Brisbane, Australia. Mr. Fahimuddin, who is a hearing and speech impaired employee of the firm, completed an inspirational bowling spell claiming 7 wickets in 4 overs giving away only 5 runs in the Deaf Cricket World Cup organized by the Deaf Cricket Society. The firm is committed to its Equal Opportunity Policy and to provide a work environment free of discrimination on the basis of religion, belief, social status or physical or sensory disabilities.We are proud to announce that recently our Cricket Team had won Suntan Corporate Cup on 20th Dec’15. Besides, winning the tournament Mr. Tanuj Kumar of the SSR Team was awarded The Batsman Award and Mr. Daman Ahuja, also of the SSR Team was bestowed The Man of Series Award
S. S. Rana & Co was also in news for winning the Women’s Football at the Adidas Uprising at New Delhi in December. The SSR Men’s football was not far behind, having qualified to the semi-finals of The Legends Cup and the CII Soccer Fest organized at New Delhi.
We at S. S. Rana & Co always believe that employees are the assets to us and every year we celebrate any festivals with them as they do at home with lot of zeal and enthusiasm.
Colored in the theme of Independence Day, employees came in tri color attire to office. We also distributed prizes to the best dressed employee.
The firm completed 26 glorious years on 1st Sept 2015, on the occasion the Firm organized a fun-filled entertainment gathering for its employees. The evening began with throwing light on the Firm’s memorable journey of the last 26 years, followed by some fun quiz round about the Firm. Recognitions and awards were also distributed to well deserving and performing employees followed by dance, food and drinks.
Bringing together people from different religions and castes under one room to celebrate the fundamental thought of unity and integrity, S.S. Rana & Co. also celebrated Diwali on November 10, 2015, by offering obeisance to goddess Lakshmi, the goddess of wealth and fortune, followed by various employee-engagement programs where all employees of the firm participated with full vigour and enthusiasm.
In addition to the above, the firm has been a constant partnered itself with various organizations for sharing and propagating knowledge and awareness. Recently, S.S. Rana & Co. made a notable contribution to Magic Lawyers, a legal editorial, by contributing an article on “Lessons in Management from IP Firms”.
…not just for Christmas. It’s easy to foster team spirit before Christmas: the secret ballot to send messages, Secret Santa and general good will. On December 24 on the eve of Christmas, S. S. Rana & Co. hosted a Christmas Carnival for its employees where all the departments organized their own stalls for games, music, food, fun, charity and lot more followed by a dance party.