A ‘service’ involving ‘art’ necessarily involves ‘freedom and discretion in presentation’. Before release of ‘Fan‘ in 2016, Yash Raj Films Private Limited circulated a ‘promotional trailer’, both on television and online, which contained a song in form of a video. Afreen Fatima Zaidi states, ‘Fan‘ did not contain the song, even though the song was […]
Read more "Promotional Trailers"A product-by-process claim is permitted where it is found, it would be difficult to define a product with reference to its structural features. It is acceptance of this facet of such claims which constitutes point of origin of product-by-process claims. For assessing novelty one must disregard the process terms and discern whether the product possesses […]
Read more "Product-by-Process Claim"According to Defendants, in olden times, hunting was a favoured sport and when setting out to hunt, whisky was often carried. ‘Stags’ were among animals which were favourites. Both are an integral part of Scottish culture and cannot be separated. ‘Stag’ is an animal. Liquor, consumed in excess, may evoke animalistic tendencies. ‘Stags’ cannot, in […]
Read more "Stags and Whiskey"Infringement, unlike passing off, is to be decided on a plain comparison of rival marks. Goodwill and reputation have little, if any, part to play. The matter has to be examined from the perspective of a customer of average intelligence and imperfect recollection, who is neither a genius nor a fool. One may, in a […]
Read more "Initial Interest Confusion"Aarur Tamilnadan sought a declaration: ‘Enthiran‘ is an infringing copy of Aarur’s ‘Jugiba‘, a story about a Humanoid Robo. ‘Jugiba‘ was published by ‘Iniya Udayam‘ in April, 1996. A film has a wide field, a big background. A film if by and large is a copy, violation of copyright may be said to be proved […]
Read more "Humanoid Robo"Sushant Singh Rajput (SSR) met an untimely end on 14.06.2020. The circumstances remain murky and dust is still to settle. The right to privacy and publicity are not heritable and died with SSR. The information contained in Nyay: The Justice constitute publicly available information. However, to put it plainly, coincidences are one too many. It […]
Read more "SSR"Plaintiff adopted the device mark ‘Bhaiyaji Kahin’ with effect from 2016 under Classes 38 and 41. It came to Plaintiff’s knowledge in 2022, Defendant was launching a show titled ‘Bhaiya Ji Superhit’. What would be included in Class 38 would be names of TV channels; names of programmes telecast on these channels would be subject […]
Read more "Bhaiyaji"Copying is not actionable at law if it stops short of infringement or passing off. Imitation, after all, is one form of flattery. The likelihood of confusion has to be examined from point of view of a customer of average intelligence and imperfect recollection, not an amnesiac. If features of dissimilarity are numerous, with little […]
Read more "Dissimilar Trade Dress"02-11-2018 – 15-05-2023 The rule flowing from the maxim ‘generalia specialibus non derogant’ has been i) considered in Hari Shankar Jain, (1978) 4 SCC 16 and ii) explained in Mary Seward v. Owner of “Vera Cruz”, (1884) 10 AC 59, 68. Pharmacy Council of India v. Dr. S.K. Toshniwal Educational Trusts, [Transfer Petition (Civil) Nos. 87-101 of 2014]. […]
Read more "Random Collectibles of Justice M.R. Shah at Supreme Court"Extolling of one’s positive features is permissible. However, denigration of a rival’s or a competitor’s product is completely impermissible. It would be reading too much into Santoor’s impugned advertisement, in my opinion, to extract from it anything derogatory or deprecating regarding Dettol. It does not even obliquely refer to moisturizing qualities, present or absent, of […]
Read more "Comparative Advertising IV"The question would arise, whether invention claimed in ‘Air Decontamination Assembly’ [Application No. 201741016833] is no more than a workshop improvement/mere application of an old contrivance? Can it be described as a lucky accident? In opinion of this Court, subject invention is not a mere addition to a well-known combination. It has some new features […]
Read more "Air Purifier"Campus Activewear Limited’s press for relief can only be decided on claim of passing off. On a comparison, it is undeniable, there are structural and phonetic similarities between ‘CAMPUS’ and ‘CAMPS’. Rama Shankar Garg, sole proprietor of M/s. Baba Footwear, is the registered owner of the mark ‘CAMPS’. ‘CAMPS’ was accorded registration as early as […]
Read more "Rip Van Winkle Policy"It is now settled, proprietor of one registered trade mark can sue proprietor of another registered trade mark [Raj Kumar Prasad v. Abbott Healthcare Pvt Ltd., (2014) 60 PTC 51, Corza International v. Future Bath Products Pvt Ltd., 2023 SCC OnLine Del 153]. It is trite, Court has to tread cautiously when it has to […]
Read more "Curse of Biscuit Cases"Appellant, through Application No. 3757855, sought registration of ‘COCK’ word mark for ‘water and colour pistols, water and colour guns, water and colour sprayers, being toys included in Class 28’. The objection of Learned Senior Examiner predicated on registration granted to Chinna Nadar. Chinna Nadar’s mark is a composite device mark which includes words: ‘COCK […]
Read more "Toy Pistol"Senior Examiner of Trade Marks, Delhi rejected registration of a device mark in Class 39 on ground, subject trademark is laudatory and objectionable in terms of Section 9(1)(b) of The Trade Marks Act, 1999. Counsel appearing on behalf of NRI Taxi Service Ltd. correctly places reliance on Mohd. Rafiq v. Modi Sugar Mills Ltd., […]
Read more "Laudatory"Only one Academy Award has ever been revoked in history of Oscars. ‘Young Americans’ won for Best Documentary in 1969. It was discovered, ‘Young Americans’ had played in a theater in October, 1967. Oscar was handed over to ‘Journey Into Self’. _____ 03.10.1980 – Chhabirani was gang-raped… 23.04.2002 – We are satisfied, present case is a […]
Read more "Chhabirani"‘SUBERB’ is not phonetically similar to ‘SUBWAY’. ‘Sub’, when used in context of sandwiches, is an abbreviation for ‘Submarine’, which represents a well-known variety of long-bodied sandwiches. Mr. Submarine Ltd. v. Bikas, 1975 CarswellOnt 1001-Mr. Submarine Ltd. v. Emma Foods, 1976 CarswellOnt 1006-Mr. Submarine Ltd. v. Haralambos Voultsos, 1977 CarswellOnt 1041 testifies to commonality of […]
Read more "Submarine"The Trademarks Act, 1999 Section 2(1)(za)(iv): ‘trade description’ means any description/statement/indication, direct or indirect, as to country in which goods were made/produced/provided. Section 2(1)(i)(I): ‘false trade description’ means a ‘trade description’ which is untrue or misleading in a material respect as regards goods to which it is applied. Section 9(2)(a): a mark shall not be […]
Read more "Swiss Military"‘GLUCON-D TANGY ORANGE’ v. ‘DABUR GLUCOPLUS-C ORANGE’ The TV commercial identifies ‘orange glucose’ as ‘product category’. But, is it disparaging in nature? Disparagement is an act of belittling someone’s goods or services with a misleading remark. The TV Commercial does not disparage any ‘orange glucose’ drink. Disparagement cannot be a far-fetched inference. It would […]
Read more "Comparative Advertising III"Plaintiffs allege infringement by Defendant of their Registered Design No. 306577 which was the subject matter of Diageo Brands B.V. v. Great Galleon Ventures Limited, 2022 SCC OnLine Del 2350 [‘Great Galleon’] as well. Senior Advocate, Amit Sibal points out, Section 22 of The Designs Act, 2000 identifies ‘obvious’ and ‘fraudulent’ imitation as the test. […]
Read more "Design Piracy / No Bottle, Just Bottle II"
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