Upload FIRs in Police Websites

Youth Bar Association of India vs. Union of India

The Supreme Court directed that the copies of the FIRs, unless the offence is sensitive in nature, like sexual offences, offences pertaining to insurgency, terrorism and of that category, offences under POCSO Act and such other offences, should be uploaded on the police website, and if there is no such website, on the official website of the State Government, within twenty-four hours of the registration of the First Information Report so that the accused or any person connected with the same can download the FIR and le appropriate application before the Court as per law for redressal of his grievances. The Bench clarified that in case there is connectivity problems due to geographical location or there is some other unavoidable difficulty, the time can be extended up to forty-eight hours. The said 48 hours can be extended maximum up to 72 hours and it is only relatable to connectivity problems due to geographical location.

If The Threat Of Infringement Exists, Then Courts Have Jurisdiction To Entertain The Suit

The Coca-Cola Company Vs.Bisleri International Pvt. Ltd Manu/DE/2698/2009

IPR Law- Infringement: Export: Threats: Jurisdiction – The Delhi High Court held that if the threat of infringement exists, then this court would certainly have jurisdiction to entertain the suit.

It was also held that the exporting of goods from a country is to be considered as sale within the country from where the goods are exported and the same amounts to infringement of trade mark.

In the present matter, the defendant, by a master agreement, had sold and assigned the trade mark MAAZA including formulation rights, know-how, intellectual property rights, goodwill etc for India only. with respect to a mango fruit drink known as MAAZA.

In 2008, the defendant filed an application for registration of the trade mark MAAZA in Turkey started exporting fruit drink under the trade mark MAAZA. The defendant sent a legal notice repudiating the agreement between the plaintiff and the defendant, leading to the present case. The plaintiff, the Coca Cola Company also claimed permanent injunction and damages for infringement of trade mark and passing off.

It was held by the court that the intention to use the trade mark besides direct or indirect use of the trade mark was sufficient to give jurisdiction to the court to decide on the issue. The court finally granted an interim injunction against the defendant (Bisleri) from using the trade mark MAAZA in India as well as for export market, which was held to be infringement of trade mark

Suit For Infringement Of Registered Trade Mark Is Maintainable Against Another Registered Proprietor Of Identical Or Similar Trade Mark

Clinique Laboratories LLCand Anr. Vs. Gufic Limited and Anr. MANU/DE/0797/2009

IPR Law- Suit for infringement by a registered trade mark owner against a registered trade mark holder: Conditions-The present dispute was between the registered trade mark of the plaintiff as well as defendant. It is interesting to note that before filing the suit the plaintiff i.e. Clinique had filed a cancellation petition before the Registrar of Trade Marks, India, against the defendant for cancellation of the defendant’s trade mark CLINIQ. As per the Section 124(1) (ii), of the Indian Trade Marks Act, 1999 a suit is liable to be stayed till the cancellation petition is finally decided by the competent authority.

However, under Section 124(5) of the Act, the court has the power to pass interlocutory order including orders granting interim injunction, keeping of account, appointment of receiver or attachment of any property.

In this case, the court held that a suit for infringement of registered trade mark is maintainable against another registered proprietor of identical or similar trade mark.

It was further held that in such suit, while staying the suit proceedings pending decision on rectification/cancellation petition, the court can pass interim injunction restraining the use of the registered trade mark by the defendant, subject to the condition that the court is prima facie convinced of invalidity of registration of the defendant’s trade mark. In this case the court granted an interim injunction in favour of the plaintiff till the disposal of the cancellation petition by the competent authority.

Patent Infringement Cannot Be Presumed

Bayer Corporation Vs. Union of India 162(2009) DLT 371

Bayer Corporation, instead of filing a suit for infringement, filed an inventive writ petition in the Delhi High Court desiring that since the applications of Cipla “SORANIB” allegedly infringed its patent, its (Cipla’s) marketing approval application under the Drugs Act should not even be processed or entertained. It is for the first time that an attempt is made to link drug approval to patent infringement in India. However, the Delhi High Court, denying the injunction, imposed a substantial cost of Rs. 6.75 Lakh to deter any such future attempts.

Bayer relied on the argument that a combined reading of Section 2 of the Drugs and Cosmetic Act along with Section 48 of the (Indian) Patent Act, 1970 establishes a Patent Linkage Mechanism under which no market approval for a drug can be granted if there a patent subsisting over that drug. It also claimed that CIPLA’s “SORANIB” is a “Spurious Drug” as defined under the Drugs Act, for which market approval cannot be granted.

The Hon’ble High Court of Delhi held that there is no Drug- Patent Linkage mechanism in India as both the Acts have different objectives and the authority to determine patent standards, is within the exclusive domain of the Controller of Patents. Moreover, the patent linkage will have undesirable effect on the India’s Policy of Public Health. It further held that the market approval of a drug does not amount to infringement of patent. Therefore, the patent infringement cannot be presumed, it has to be established in a court of law. Such adjudication is beyond the jurisdiction of Drug Authorities.

On the issue of “SORANIB” being a spurious drug, the court held that CIPLA’s “SORANIB” cannot come under the category of spurious goods as there is no element of passing off like deception or imitation present in CIPLA’s drug”.

Speedy disposal of Intellectual property rights cases

BajajAuto Limited Vs. TVS Motor Company Limited JT 2009 (12) SC 103

 Dispute over Patent for the Use of Twin-Spark Plug Engine Technology – Speedy disposal of Intellectual property rights cases- The Supreme Court of India by this landmark judgment has directed all the courts in India for speedy trial and disposal of intellectual property related cases in the courts in India. In two-year-old dispute involving two companies, which have been locked in a patent dispute over the use of a twin-spark plug engine technology, the Supreme Court observed that suits relating to the matters of patents, trademarks and copyrights are pending for years and years and litigation is mainly fought between the parties about the temporary injunction. The Supreme Court directed that hearing in the intellectual property matters should proceed on day to day basis and the final judgment should be given normally within four months from the date of the filing of the suit. The Supreme Court further directed to all the courts and tribunals in the country to punctually and faithfully carry out the aforesaid orders.

Trump on Copyright: How the Trump Administration will approach copyright law and potential copyright reforms

This month the International Intellectual Property Alliance published its report on the contribution of copyright industries to the US economy. It demonstrated the major economic benefits to our society that are attributable to our traditional protection of intellectual property rights. At the issuance of this report, Congressman Doug Collins, House Judiciary Committee Subcommittee on Courts, Intellectual Property, and the Internet Vice Chair, stated, “Creativity undergirds the 21st century economy, and strong intellectual property rights ensure that our economy benefits from the innovation and pluck of American workers who bring many of our dreams to life…..Our nation’s founders, in their wisdom, placed intellectual property rights under the umbrella of our protected Constitutional rights. From the beginning, Congress has had the responsibility of upholding and strengthening those rights—which fuel American ingenuity….”

We know that not only are copyrights grounded in the constitution, but core copyright industries contribute approximately $1.2 trillion to the U.S. economy annually, and employ over 5.5 million American workers. At the same time, however, we are acutely aware that, unfortunately, copyright theft online is rampant, and the Digital Millennium Copyright Act (DMCA) has increasingly become ill equipped to address even flagrant, willful copyright infringement in the digital world.

What we don’t know, however, is how President-Elect Trump and the Trump Administration will view copyright issues, and whether pro-creator copyright reforms will be on the President’s agenda come January 20, 2017. We can, however, make some educated guesses based on Trump’s entertainment industry ties, his potential Supreme Court nominees, and those he is surrounding himself with on his Transition Team and in a Trump Administration that is increasingly taking shape.

Trump Entertainment Industry Ties

People have called Trump many things, but even his most vociferous critics must admit he is a media genius. As an entertainment personality, he first became known as an author, writing: Trump: The Art of the Deal, first published in 1987. Trump has written other books since, but he became most widely known for his starring role as the host of the reality TV series The Apprentice. Trump recently tweeted that he conceived of the idea of The Apprentice with producer Mark Burnett, and he will continue to receive Executive Producer credit on the show even after he is sworn in as President. Trump also owned the Miss Universe beauty pageant from 1996 until 2015. All in all, Trump has over 30 copyrights to his name, not including any owned by his companies.

Despite this background, we cannot be certain that the new Administration will side with copyright owners. To be sure, the President-elect has been for some time a larger than life media personality and talent within the industry, and thus might be inclined to support others in the creative industries Moreover, Trump has had on-again off-again rocky relationships with broadcast networks over the years (see here and here) and the Silicon Valley giants that find themselves at cross purposes with content creators in the digital era did nothing to endear themselves to Trump during the campaign. In fact, with the exception of Peter Thiel and to a lesser extent Mark Zuckerberg (who was largely defending Peter Thiel) the Silicon Valley elite snubbed, mocked and ridiculed Donald Trump and his supporters throughout the election cycle. With all that said, however, predicting the new Administration’s position on specific copyright issues is a fool’s errand at this time.

Potential Supreme Court Nominees

One of the first things President Trump will likely do is appoint a Supreme Court Justice to fill the vacancy left by the death of Justice Antonin Scalia. Trump has released a list of possible nominees for the Supreme Court. Only a few seem to have any copyright experience or familiarity in their professional past.

Florida Supreme Court Justice Charles Canady previously served in the House of Representatives from 1993 to 2000. While in Congress, Justice Canady served on the House Judiciary Committee and its Subcommittee on Courts, Intellectual Property, and the Internet. He co-sponsored during his time in Congress two bills related to copyrights: (1) The Copyright Term Extension Act; and (2) The Intellectual Property Antitrust Protection Act.

Senator Mike Lee (R-UT) has had some involvement with copyright policy in the music industry as chairman of the Senate Judiciary Subcommittee on Antitrust, Competition Policy, and Consumer Rights, but he did not tip his hand about whether he places more value on copyright as a property right or on a consumer’s ability to access the copyright. As an example, he summarized his opening statement in a hearing last congress with the non-committal statement, “As we listen today, we must remember that we have both a responsibility to encourage creativity by recognizing the value of copyrights and a duty to ensure that prices for music remain competitive for consumers.” In 2012, Senator Lee opposed the Protect IP Act, legislation supported by the copyright industries to provide the US government and copyright holders additional tools to curb access to rogue websites dedicated to the sale of infringing or counterfeit goods. In a statement Senator Lee released on January 18, 2012, explaining his opposition to the Protect IP Act, he explained he was sympathetic to the objectives of the Act, but thought the bill “would threaten Internet security, stifle the free flow of online information, and unduly burden third parties.”

Senator Lee’s brother, Utah Supreme Court Associate Chief Justice Thomas Lee, previously specialized in intellectual property law while in private practice. Justice Lee also taught intellectual property law at Brigham Young University. However, Justice Lee seems to have primarily specialized in trademark law, not copyright matters. Only two articles relating to copyright law could be located that were authored by Justice Lee, both written while he was a Law Professor at BYU. They are: (1) Eldred V. Ashcroft and the (Hypothetical) Copyright Term Extension Act of 2020 (2003); and (2) “To Promote the Progress of Science”: The Copyright Clause and Congress’s Power to Extend Copyrights (2002) (co-authored with Senator Orrin Hatch R-UT). In the 2003 article, he argued that if the Supreme Court ruled in Eldred that a term of life plus seventy years was “limited” than they would be unlikely to rule differently in the case of life plus 100 years. A thirty year increase is still not a “perpetual copyright.” In the 2002 article, however, the authors argued in favor of the Copyright Term Extension Act (CETA). Specifically, they supported their argument using the scarcely referenced preambular purpose provision of the Copyright Clause, “promot[ing] the progress of science” and took issue with the then-existing scholarly literature that asserted “that copyright fulfills its constitutional purpose only if it increases the quantity or quality of the existing body of artistic works.” They argued that progress does not inherently equal “more” but rather the physical movement forward. “The Copyright Clause,” they wrote, “encompasses the broader notion of encouraging the dissemination and preservation of existing works. Since the CTEA can be understood to advance those objectives” it should be upheld as “constitutional.”

Trump, Trump Transition Officials and Trump Nominee Statements on IP

Perhaps the closest thing the President-elect has offered as an insight into how he will treat copyright as President came during an August 8th speech outlining his economic plan. He stated (with the following underlining added for emphasis):

“At the center of my plan is trade enforcement with China. This alone could return millions of jobs into our country. They break the rules in every way imaginable. China engages in illegal export subsidies, prohibited currency manipulation, and rampant theft of intellectual property. They also have no real environmental or labor protections, further undercutting American workers. Just enforcing intellectual property rules alone could save millions of American jobs. According to the U.S. International Trade Commission, improved protection of America’s intellectual property in China would produce more than 2 million more jobs right here in the United States.”

One of the transition team members, Congresswoman Marsha Blackburn (R-TN), House Energy and Commerce Committee Vice Chair recently stated, “Creativity unleashes endless possibilities as evidenced by the results of this study. The contributions made by the creative industry to the US economy are remarkable. It’s imperative that we continue pushing to protect intellectual property rights.”

Another of Trump’s transition team members, Congressman Tom Marino (R-PA), a member of the House Judiciary Committee’s Subcommittee on Courts, Intellectual Property, and the Internet, has been a long-time copyright supporter. He noted upon introducing the Copyright Office for the Digital Economy (CODE) Act, “Creativity is the essence that has made America the most prosperous nation in the world.” At an event for music publishers and songwriters, he said, “I know firsthand what it is like to work hard for a paycheck and stretch a buck into next week. I appreciate the painstaking hours you put into your craft. When I think of songwriters, I think of the extraordinary gifts songwriters create for society. Music provides the soundtrack to our lives… Call me crazy, but if you work for hours and hours on a hit that is played around the world, your paycheck ought to reflect that success and make a good living for you and your family… There are songwriters in each district in America… If each of these songwriters reaches out to their members of Congress, we can make a difference. Advocacy is of the utmost importance.”

The President-elect’s nominee for Secretary of Commerce, Wilbur Ross, wrote an op-ed in July 2016 saying WTO provides “little or no protection” against IP theft. Moreover, he stated that future trade deals should have “zero tolerance” for IP theft.

Conclusion

The creative works that are supported by America’s copyright laws – music, movies, TV, books, software, and video games – bind us together as a nation. Admittedly, there are far more questions than answers with respect to how the President-elect and his Administration will approach specific copyright law issues and potential copyright reforms, but there is reason to hope that they understand the critical importance of copyright to our economy, to good American jobs, and to our global competitiveness.

http://www.ipwatchdog.com/2016/12/18/trump-administration-copyright-law-copyright-reforms/id=75793/

Aircel-Maxis deal: Supreme Court orders 4 accused to appear before Special Court

The Supreme Court on Friday said that the four accused in the Aircel-Maxis case would have to appear before the Special Court and the scheduled the hearing on February 3, 2017.The SC said Aircel spectrum was to be seized & transferred within 2 weeks if the controller & owners did not appear in court in connection with the case. Earlier yesterday, the Chennai High Court had dismissed a bunch of petitions challenging the summons by the Enforcement Directorate citing that the Aircel-Maxis deal was being heard by the Supreme Court. One of these petitions had been filed by former Union Minister P Chidambaram. Karti Chidambaram and Advantage Strategic Consultants Private Limited’s directors were among the other known petitioners, who had challenged the ED summoning. Karti, in his petition, had contended that the summons was a malice in law and added that the summons was campaign was to aim to bear ill reputation of his father, P Chidambaram. Justice B Rajendran had concurred with the Centre’s counsel and said that the matters related to the case were being monitored by the Apex Court.

Earlier in September, senior advocate Harish Salve had appeared for the accused and said that the Aircel-Maxis case was in no way related to the 2G spectrum scam. He had argued that the Chennai-based Telecom promoter C Sivasankaran had been unduly pressured by the then Telecom Minister Dayanidhi to sell the stake in Aircel to Ananda Krishnan owned Maxis in 2006 but it had nothing to do with the 2G scam.

The trial court, however, had said that the Aircel-Maxis deal fell “fairly and squarely falls within the description of 2G scam”. The CBI had earlier alleged that Dayanidhi had “pressured” and “forced” Sivasankaran to sell his stakes in Aircel and two subsidiary firms to Malaysian firm Maxis Group in 2006. The Malaysian firm had favoured by Dayanidhi and granted a licence within six months after the takeover of Aircel in December 2006, it had said. Ex-Telecom Secretary J S Sarma was also named in the CBI’s charge sheet. His name was put in a column of the accused against whom trial cannot proceed.

Justice Markandey Katju Submits Apology In Supreme Court Over Post Criticising Soumya Verdict

With an unconditional apology, former Supreme Court judge Markandey Katju today extricated himself from a contempt case over a blog post in which he had sharply criticised the court's verdict in the 2011 rape and murder of 23-year-old Soumya in Kerala.

The Supreme Court accepted Justice Katju's apology and closed the case.

In a Facebook post, the outspoken former judge had commented that the Supreme Court had seriously "erred in law" by reducing the sentence of the convict in the Soumya case.

The Supreme Court described the post as "a serious assault on judges, not on judgements" and initiated a contempt case.

"I don't bother," Justice Katju declared in the courtroom during a hearing. The judges then asked for him to be escorted out of the court.

Justice Katju said in an affidavit today that he respects judicial proceedings and the judiciary.

Soumya, an employee of a Kochi shopping mall, was assaulted by Govindachamy, a serial offender in an empty ladies' coach of Ernakulam-Shoranur passenger train on February 1, 2011.

Govindachamy grabbed her by the hair and hit her head repeatedly against the wall of the coach. After she was thrown off the moving train, he jumped after her, hit her with a stone and raped her in her wounded state.

She died five days after the savage attack.

Govindachamy was sentenced to death by a trial court and the order was confirmed by the high court in 2013. In September, the Supreme Court cancelled Govindachamy's death sentence saying there was no evidence that he had caused Soumya's death or had intended to kill her.

In November, the top court dismissed petitions to review its judgment

Commenting that there had been a "gross error of judgement", Justice Katju wrote that the court had relied on hearsay.

http://www.ndtv.com/india-news/justice-markandey-katju-apologises-to-supreme-court-over-post-criticising-soumya-verdict-1645845

Supreme Court rejects HC ruling: No sovereignty for J-K outside Constitution of India

Snubbing the Jammu and Kashmir High Court for asserting the state’s “sovereignty” and “sovereign powers”, the Supreme Court Friday said J&K “has no vestige of sovereignty outside the Constitution of India”. A bench of Justices Kurian Joseph and Rohinton Nariman also rejected the J&K High Court’s view that the J&K Constitution was equal to the Constitution of India.

“It is clear that the state of Jammu & Kashmir has no vestige of sovereignty outside the Constitution of India and its own Constitution, which is subordinate to the Constitution of India… they (residents of state) are governed first by the Constitution of India and also by the Constitution of Jammu & Kashmir,” the bench said, referring to the preamble of the Constitution of J&K, 1957.

The bench called it “disturbing” that various parts of a judgment in appeal by the J&K High Court spoke of the absolute sovereign power of the state. “It is necessary to reiterate that Section 3 of the Constitution of Jammu & Kashmir, which was framed by a Constituent Assembly elected on the basis of universal adult franchise, makes a ringing declaration that the State of Jammu & Kashmir is and shall be an integral part of the Union of India. And this provision is beyond the pale of amendment,” the judges said.

The bench also clarified that J&K residents are “first and foremost” Indian citizens. “It is therefore wholly incorrect to describe it as being sovereign in the sense of its residents constituting a separate and distinct class in themselves. The residents of Jammu & Kashmir, we need to remind the High Court, are first and foremost citizens of India… permanent residents of the state of J&K are citizens of India, and that there is no dual citizenship as is contemplated by some other federal Constitutions in other parts of the world,” it said.

The top court pointed out that it was constrained to observe these because in at least three places, the High Court, in its judgment, “has gone out of its way to refer to a sovereignty which does not exist”.

Underlining that the quasi-federal structure of the Constitution of India continues even with respect to J&K, the bench said: “Article 1 of the Constitution of India and Section 3 of the Jammu & Kashmir Constitution make it clear that India shall be a Union of States, and that the State of Jammu & Kashmir is and shall be an integral part of the Union of India.” It said the J&K Constitution has been made to further define the existing relationship of the state with the Union of India as an integral part thereof.

The court said this while deciding a legal question on whether the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act) will be applicable to J&K or the law was outside the legislative competence of Parliament since its provisions would collide with Section 140 of the Transfer of Property Act of J&K.

SARFAESI Act entitles banks to enforce their security interest outside the court’s process by moving a tribunal to take possession of secured assets of the borrower and sell them outside the court process. The High Court had said that the state has absolute sovereign power to legislate in respect of laws touching the rights of its permanent residents qua their immovable properties.

After the State Bank of India appealed against the High Court order, the J&K government submitted in the Supreme Court that this law encroached upon the property rights of permanent residents of the state and must be read down so that it will not be permissible to sell property belonging to a permanent resident of the state to outsiders. It was also argued that Parliamentary legislation would need concurrence of the J&K government before it could apply to the state under Article 370.

But the Supreme Court bench shot down these arguments, saying SARFAESI Act deals with recovery of debts due to banks and financial institutions, which is relatable to a subject under the Union List and parliamentary legislation did not require concurrence of the state government since the Centre had power to make law on this subject.

“Entries 45 and 95 of List I clothe Parliament with exclusive power to make laws with respect to banking… the Act as a whole would necessarily operate in the state,” the bench said, adding that the SARFAESI Act had itself made a special provision for sale of properties in J&K.

The bench, however, made it clear that any provision of the J&K Transfer of Property Act will have to give way to the central law in case the former is found repugnant. “It is clear that anything that comes in the way of SARFAESI by way of a Jammu & Kashmir law must necessarily give way to the said law,” it said, adding that its judgement had no effect on Article 35A, which confers on permanent residents of J&K special rights and privileges regarding acquisition of immovable property in the state.

PayPal opposes registration of Paytm’s new trademark

Global payments major PayPal has filed a complaint opposing the registration of Paytm's trademark in a notice with the local trademark office, which falls under the ministry of commerce. The notice reviewed by TOI, says that PayPal has pointed out that Paytm's trademark is "deceptively and confusingly similar to PayPal" with a similar color scheme.

"The first syllable in each mark is in dark blue colour and second syllable is in light blue colour. Further both marks begin with PAY' which consumers tend to remember more than the second syllable, and the marks are of similar length.These similarities cause likelihood of confusion in the aggregate, specially considering the fame of the opponent's (PayPal) earlier trademark," the notice said.

When contacted, both PayPal and Paytm spokespersons refused to comment on the matter.

The Noida-based Paytm had advertised its trademark registration in July, a mandatory step, after which anyone, if at all, gets a period of four months to raise objections. The timing of PayPal's notice is interesting since it was filed on the last day of the mandatory timeline. Paytm has been one of the biggest beneficiaries of the government's demonetisation plan announced over a month back. It has seen a big jump in new users, transaction volumes due to the cash crunch. PayPal has mentioned in its notice that its brand name has been registered since 1999 across the globe. "It remains to be seen if the matter will reach the courts if they do not find a resolution through this process,".