Tuesday, December 30, 2014

4D Dress Made: Scope of Intellectual Property Widens

Rosenkrantz and Jesse Louis-Rosenberg of Massachusetts Institute of Technology are the people behind the creation of the 4D Designer Dress. The Dress has just been added to the permanent collection of the Museum of Modern Art in New York. It costs $ 3000 and may never be worn considering the complex and intricate procedure to design it.

The project is related to web application-Kinematics. To make the Dress, the designers took a 3D scan of the model’s body. Their design studio, Nervous System, is at the forefront of a movement that uses software to mimic processes and patterns found in nature.

The Kinematics concept was developed as a project for Google. Even Apple is expected to announce Design collaborations with luxury brands next year.  Iris van Herpen recently introduced clothes inspired by the Large Hadron Collider, the particle accelerator at the Cern laboratory in Switzerland.

Thus, technology companies are leaning towards fashion to glamorise wearable technology and scope of intellectual property further widens.

-Shambhavi Mishra

Monday, December 29, 2014

Battle of the Birds

Casual clothing maker, Jack Wills has won the case on trademark infringement and passing off with respect to “Mr Wills”, a silhouette of a pheasant with top hat and cane, features on many of Jack Wills’ garments, which is registered as a UK and community trademark. Jack Wills brought claims against department store, House of Fraser because of its use of a similar-looking Pigeon logo.

Mr Wills is “inherently distinctive”, and that it had made “extensive use” of the Mr Wills logo in relation to its clothing. The High Court was of the view that there was "a reasonable degree of visual similarity and a high degree of conceptual similarity between the marks." Both the goods were identical and that the types of garments on which the logos were used corresponded closely - all of which suggested a likelihood of confusion existed with regard to an average consumer.

-Shambhavi Mishra

Sunday, December 28, 2014

Crocs chasing Bata

Footwear giant Crocs has initiated legal action in India against Bata and a number of other footwear brands including Coqui, Suncorp Exim (for Warner Bros, clogs), Relaxo and Bioworld. Crocs is known for its Swiss cheese-style shoes and has contended that the above mentioned brands have imitated its design. The design of Clogs, its holed, foam-like shoe has been used by these brands to sell their products at a very cheaper rate as compared to price at which they are sold by Crocs. Clogs accounts for more than half of the Colorado-based company's global sales.

Crocs has filed a case in the District Court of Delhi and has obtained interim reliefs of injunction. Most of the cases have now been transferred to the Delhi high court by virtue of applicable statutory provisions. The rulings have subsequently resulted in raids across various stores, including that of Bata's in Delhi and NCR.

-Shambhavi Mishra

Wednesday, December 24, 2014

Revival or Slumber: The Sleeping beauty Brands

Arnaud de Lummen has the successful business of reviving dormant fashion brands and selling them to investors. The Sleeping Beauty brands include Schiaparelli, Vionnet, Moynat and, now, Paul Poiret. The concept behind this is that these fashion brands still retain brand equity which can be used to offer a new product. The investors who are interested in such brands are creative and willing to take risks.

De Lummen confesses that they need to get a bit aggressive while acquiring rights over dormant brands. To relaunch a brand, Intellectual Property portfolio must be clean so that there is no ambiguity. He acknowledges that there is a bit of fashion fatigue or comparison to such brands which had failed earlier.

Such brands much be bought by the very top investors. Unlike Halston, one needs to be patient in earning revenues and increasing sales volume.
Financial backing is also important. Like Bernard Arnault who had acquired rights over Moynat, investors must be far sighted.

If the major luxury conglomerates currently lack the requisites for taking on more such projects, perhaps the era of big brand revivals is over?

-Shambhavi Mishra

Tuesday, December 23, 2014

Novartis and Cipla: Compulsory Licensing Trouble

Cipla had launched a low cost generic version of Novartis’ respiratory drug Onbrez. It has even demanded revocation of the Swiss giant’s patents on the grounds of public interest  (S. 66 of the Indian Patent Act) and granting compulsory licensing due to national emergency or urgency (S. 92). Novartis’ version of the drug was expensive and it is not worked locally. The drug was imported in very small quantities which were insufficient to meet the needs of the people.

Health Ministry is of the view that a potential compulsory license applicant must attempt to procure voluntary license from the patent holder which was not the case with Cipla. Novartis’ patent on the drug was not revoked. There was no case for Compulsory Licensing under S.92.
Novartis has filed a case against Cipla contending for infringing patents covering Onbrez. The drug is protected by 5 patents in India. In putting forth their cause, the Pharmaceutical giant contends that there is ample supply of Onbrez.

Novartis has also made a claim for Trade Mark Infringement. Cipla’s generic version (Unibrez) is deceptively similar to Novartis’ Onbrez which may cause confusion among the people. The Delhi High Court granted permanent injunction in Novartis’ favour. Cipla hopes to find a way out of this battle, by proposing to use the mark “Indaflo”, but of course nothing can be changed till the suit is on.

-Shambhavi Mishra

Monday, December 22, 2014

The Tale behind Fait d' Hiver

Jeff Koons for his porcelain sculpture Fait d’ Hiver (created in 1988) is likely to be sued by Frank Davidovici for plagiarism. Fait d’ Hiver is also the title of 1985 Naf Naf ad. The sculpture somewhat resembled the ad where a woman was lying in the snow with a pig and a Saint Bernard barrel around its neck.

Jeff Koons was sued for copyright infringement in the United States in 1992. He took the defense of fair use and subsequently lost it but won case on similar grounds in 2006. French law does not have a fair use defense as exhaustive as the United States and only certain articles provide for several uses of a protected work which the owner cannot oppose (for the purpose of caricature, parody or pastiche)

In the CJEU Deckmyn case, it was held that parody is an autonomous concept of European law and must be interpreted uniformly throughout the Union. Parody is an expression of humour and mockery and evokes an existing work (noticeably different from it).

The issue before Jeff Koons is to prove that the 1985 ad is still remembered and the sculpture is recognized as a parody of the Naf Naf ad. He may also contend that people were aware of the ad at the time of creation of the sculpture and current knowledge of the ad is irrelevant.

-Shambhavi Mishra

Friday, December 19, 2014

wetter.de v. wetter.at: Tug of War

The expansion of the E-World has resulted in disputes relating to domain names. The bone of contention was the use of the sign “wetter.de” between German website wetter.de and the Austrian weather website webber.at which was also accessible “Wetter-DE/Wetter DE/wetter.de” and offered a Smartphone app called “wetter DE” via its online shop.

The Regional Court of Cologne, decided in favour of wetter.at. On appeal, the Higher Regional Court of Cologne initially held that “wetter.de” was subject to work title protection but afterwards decided that Austrian website can continue with its usage as there is very low level of distinctiveness. Wetter describes the content of the app and was not protectable under Articles 5 (3), 15 (1, 2, 3 4) German Trade Mark Act. The judges were of the view that it even failed to qualify for work title protection. It was purely descriptive in nature without even a low degree of distinctiveness.

Wetter.at in the meantime remains free to use the signs “Wetter-DE/Wetter DE/wetter.de” for its apps.

-Shambhavi Mishra

Volvo v. Lovol: Similarity in Trademark

Similarity in Trademark has been the cause of battle for many companies. Automobile giant, Volvo had tried to oppose the registration of “Lovol” by Hebei Aulion Heavy Industries Ltd. for agricultural machines and vehicles. Volvo had contended that “Lovol” might create confusion in the minds of the consumer due to similarity in visual symmetry, concept and phonetics. Both the marks consisted of five letters and were rearrangements of letters and sounds ‘V’, ‘O’ and ‘L’. Connection can be made between the two due to the “visual dictionary” in the human brain.

OHIM decided the matter in favour of “Lovol”. On an appeal by Volvo in General Court of the European Court of Justice, it upheld OHIM’s decision. It held that consumers focus more on the beginning of a word and both the first and last letter differ. Though there are several letters which coincide in the two marks, there is no connection due to lack of visual, aural similarity as per Article 8(5) of Regulation 207/2009 on the Community Trade Mark .Use of “Lovol” will not be detrimental to the distinctive character of the earlier trade mark (Volvo). 

Thus, the General Court dismissed Volvo’s claims in its entirety.

-Shambhavi Mishra

Thursday, December 18, 2014

Leoplod’s Story

Novex Communications a leading satellite channel distribution company filed a case[1] against Leopold Café, one of the oldest and most famous café of Bombay for exploitation of copyrighted work principally owned by Yashraj Films Pvt. Ltd. and Shemaroo Entertainment Limited.
The main question for determination in this case was whether Novex Communication is entitled to grant licence on the behalf of owners of copyright in various works.
Section 30 of the Copyright Act, 1957 provides that owner of copyright and his duly authorized agent may grant any interest by licence in writing. It further prohibits any person or association of persons from carrying on business of granting or issuing licences in respect of any work in which copyright subsists only exception is Copyright Societies Registered under Chapter VII of the Act.
The court held that for a valid licence by an agent under Copyright Act factum of agency must be disclosed so that licensee knows that it has valid licence from the owner. The minute principle is undisclosed and licence is granted in the agent’s name, the prohibition in Section 33 comes into play.
Honourable High Court observed that licences issued by Novex did not indicate that it is acting as agent for the right holders. Further the manner in which Novex is conducting its operation does not indicate that it is acting as agent for owners of copyright, thus is in direct contravention of Section 33(1).
The court in this case harmoniously interpreted Section 30 & 33 and clarified that the prohibition under Section 33 does not apply to a case where an individual acts in his individual capacity, which includes acting through an agent but only requirement is to disclose the fact of agency.
 __ Gajendra Khichi

[1] M/s. Leopold Café & Stores & Anr v/s Novex Communications Private Ltd. Suit (603of 2014) Bombay HC, decided on 17/7/2014

Wednesday, December 17, 2014

Battle of the Titans

Computer programs are subject to constant new developments, making issues like Copyright infringement a subject matter of pertinence. Presently, Oracle and Google is battling on similar grounds. In August, 2010 Oracle filed a complaint that Google has copied verbatim the literal elements of the API packages in its mobile operating system. API packages form the platform for mobile software development; in this case Google went to the extent of replicating the exact elements of the declaring source code. The issue which was dealt with most was about the non-literal elements of 37 packages out of 166 packages.

Northern District of California decided the case in favor of Google and held that API is not a subject matter of Copyright. The Ninth Circuit in this case endorsed the principle of Abstraction-Filtration-Comparison which was developed in Computer Associates Int. Inc. v. Altai Inc. . Copyright protection cannot be denied for the lines of the declaring code because Sun/Oracle did not provide only a single technique of writing the declaring code. Secondly, those phases used in it are creative and original in terms of selection and arrangement and certain expressions in the programs are subject to copyright protection.

Google filed a petition in the U.S. Supreme Court to the review the decision of the subordinate court on 6th October, 2014. Thus, a lot is at stake in terms of money, reputation which will be depending on the Supreme Court.

-Shambhavi Mishra

Tuesday, December 16, 2014

What amounts to Communication to the Public

US Copyright Act of 1976 gives copyright owner exclusive right to perform the copyrighted work publicly.[1] This is a case[2] of infringement of broadcasting rights under copyright law, where the defendant Aereo Inc. started a service over the internet through which its subscribers could watch TV programmes over the internet at the same time as the programs are broadcast over the air.

Broadcasters, distributors, television produces etc. argued that this act of Aereo violates their exclusive right of public performance provided under the Copyright Act, 1976.

In response to the above claim Supreme Court hold that the act of Aereo infringes the right provided under the Copyright Act. The court considered two questions (1) whether Aereo’s operation amounts to performance (2) whether it’s a public performance. In answer to first question it concluded activities of Aereo amounts to performance. Answering the second question it rejected Aereo’s argument that transmission of program to a subscriber is made through a specific antenna allotted to that subscriber only so does not constitutes public performance. The court further clarified that it amounts to transmission to public or public performance where members of pubic receive the performance at the same time and place or different times or places. In other words, the public need not to be situated together.

-Gajendra Khichi

[1] 17 U.S.C. SS 106(4)
[2] American Broadcasting Cos. V. Aereo 573 U.S. _(2014)

Friday, December 12, 2014

The 'Mi' Trouble

The world of smartphones has witnessed constant growth and has become the subject of numerous infringement suits. Xiaomi is no stranger to controversies. As soon as the electronics firm entered the Indian Smartphone market, a few months down the line, has been blocked from selling handsets. 

At the crux of the matter, lies the infringement claims of eight registered Standard Essential Patents of Ericsson. The Hon'ble Delhi High Court has passed an injunction forbidding the firm from producing, building, importing or selling smartphones utilizing the Patent in India. India being its largest market outside China, this surely has come off as a blow to the infant company.

Xiaomi and Flipkart, e-commerce partner, have to announce how many devices have been shipped, so as to calculate the compensation due to Ericsson. In an earlier infringement suit against Micromax, Ericsson is to receive 1% of the selling price of the devices, by way of royalty, for use of latter's Standard Essential Patents. 

While thee court has directed the Central Board of Excise and Customs to stop the import of devices from Xiaomi, it is to be looked how the firm's legal team works a way out of this suit. 

- Bagmisikha Puhan

Wednesday, December 3, 2014

The UBER War

Uber, the name invokes the image of the ride sharing company, in a major chunk of the metropolitan population of the world. The services are also available in the city of New York, where there already exists a Trade Mark in the name of Uber Inc., a graphic design company.

As a matter of fact, the ride-sharing company holds two registrations in the names of UBER and UBERCAB for the Classes 9, 38, 39 and 42. The company has a reputation which now raises questions against the popularity of the Senior Trade Mark held by Uber Inc. There are many registered “UBER” marks spread across the spectrum of the classified goods and services.  

Consumer confusion in the domain of Trade Mark law derived from the second user, capitalizing on the goodwill of the early user. On the other hand, “reverse confusion” is the first user loses its’ control over the reputation and goodwill, where the consumers grow to believe that the senior user’s goods are associated with that of the junior user. The existence of the junior and the senior Trade Marks for the name “UBER” can now become an exemplar for Reverse Confusion.

The UBER Inc., for graphic design, could have proceeded with the claims of trade mark dilution, if only the mark would have had been famous. The junior user being the famous one is actually only to the disadvantage of the design company. Another issue which has created tension amongst the two companies, is the fact that the graphic design company has a listed telephone number, while the cab providers do not; misguiding many consumers of the ride sharing company to the senior user of the mark. It is only a matter of time before it unfolds if the two companies are pitted against each other in terms of counter claims. 

- Bagmisikha Puhan