Overlapping of Intellectual Property Rights

In the case of Mukul Goyal v. Union of India and Ors., Section 15(2) of the Copyright Act has been brought under the scanner and has been contended by the petitioner to be ultra vires. As per Section 15(2), any artistic piece that is capable of being registered as a design, but has not so been registered, will lose its copyright protection the moment it has been reproduced more than 50 times. The petitioner has contended that S. 15(2) and 2(d) infringes his right to carry out his trade under Article 19(1)(g). Also Article 14 is violated as S. 15 imposes arbitrary restriction and the number of reproductions-50, is without any rationality.

As per Microfibres v. Giridhar, copyrighted artistic works simpliciter would not be hit by S. 15)2) while design works would be hit. This results in ambiguity due to overlapping Intellectual Rights. 

One solution can be to protect the original designs as artistic works under copyright law and amending the Copyright Act to ensure that any artistic work produced industrially more than 50 times is granted protection for only 15 years.

-Shambhavi Mishra

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

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

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

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

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

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