SpicyIP Weekly Review (September Week 3)

Notable developments in India

1. Kruttika Vijay, an ex-blogger at SpicyIP wrote a guest post on an important design case involving Whirlpool and Videocon. The specific design aspect was a washing machine which had a rectangular shape on one side and a semi-circular shape on the other with a jettisoned panel for the knobs. The court found that the design could not be invalidated despite arguments being advanced that it was not novel and had previously been published. Using the standard appearance based test, it also found that Videocon was guilty of infringement and passing off of Whirlpool's design. The most important take-away from this case however is the ambiguity in the interpretation of Section 6(3) and (4) of the Designs Act itself.

2. Prashant's determined efforts to find out CSIR's revenues from patent licensing hit another road block when a reply to his RTI application contained details of 'extra-budgetary resources generated' and not revenues from patent licensing, which he had explicitly requested. More worryingly however, this appears to be a deliberate attempt to mislead Prashant (and the public!) about their revenue stream despite a valid RTI application being filed. Definitely seems like something fishy is going on here and I'm sure Prashant will follow up on this in due time.

3. In the widely discussed and covered copyright infringement case involving Delhi University and Oxford University Press, there are signs that students and authors are coming together to oppose the publishers' move to declare reading materials/course packs to be illegal. Significantly, some of the authors whose books have been allegedly 'infringed', have come out in full support of the university and have even written letters to their respective publishers, asking them to drop the suit. Most notably, Nobel Laureate Amartya Sen, an Oxford University Press author himself expressed his concern about the suit filed by the publishers, putting the future of Indian education at harm. There are also petitions by student bodies, asking the government of India to implead itself in the suit, to protect the educational safeguard currently existant in the India Copyright Act. There was also a post on Kafila.org from an anonymous contributor who currently works with a major publishing house in India who provided some insights on the 'unethical business of academic publishing'.

4. In another case dealing with  fair use in a copyright matter, Archana Sahadeva covered the recent decision of ICC Development v. New Delhi Television with respect to broadcasting rights and the use of ICC CWC 2011 clips by news channels. An appeal has been preferred and we will be sure to cover the decision in detail when it is delivered.

5.The draft version of the Copyright Rules, 2012 were also released recently. An overview of the rules and its impact can be found here. You can also read Prashant's piece where he questions the constitutionality of the new scheme of the Copyright Board, proposed in the draft Rules.

6. In the battle of trademarks in the search engine space (AdWords disputes, in short) the Madras HC declined to set aside the judgment of a Single Judge of the same court, declining to grant Consim an interim injunction in its dispute with Google. Importantly, as Prashant notes, the appellate court did not make any observations on the descriptiveness/lack of distinctiveness of the 'bharat matrimony' TM, despite the fact that this was an important issue raised by the lower court.

7. The last week also saw two very important trademark cases - first, the Modi group has been prohibited from using the Mogardshammar trademark and corporate name 'Morgardshammar’ in an appeal heardby the Delhi High Court, in a suit first filed in 2010 by Morgardshammar AB, a subsidiary of the Danieli Group of Italy. Secondly, in perhaps one of the most important decisions in the last week, the IPAB has upheld the validity of the XEROX trademark, holding that it is not a generic term and should not be removed from the register. You can read more about the case here.

International developments

In copyright issues, the German Pirate Party, which proclaims itself as a defender of internet freedom, has found itself in a bit of a mess with one of its Executive Committee members being accused of 'hypocrisy' for demanding that an illegal copy of her book be taken down from the internet, whilst advocating abolition of copyright laws at the same time. You can read more about the case here. 

In other copyright news, Warner Bros has accused Amazon of promoting the sale of illegal copies of its DVD's through various Amazon sellers. Warner Bros. is alleging that the sellers operated as unauthorized distributors, peddling infringing copies of the "Harry Potter" movies and television series such as "Shameless," "Boardwalk Empire" and "Treme."

Despite the much proclaimed patent win that Apple secured over Samsung in its software patent case in the U.S., it seems like courts in other jurisdictions are not ruling similarly - with Apple losing its case against Samsung and Motorola in Germany. This really calls into question the tenability of software patents with the exact same multi touch gesture software patent in dispute in Germany as well, with different outcomes in the U.S. and Germany. 

In another patent dispute along similar lines, TiVo has now settled for roughly $250 million in its dispute with Verizon, with the latter agreeing to license patents that is essential to its technology business. The patent in dispute relates to TiVo's DVR techonology, which allows one to record television programs and play them on demand at a later point in time. You can read more about the case here. In a similar patent licensing story, it has now emerged that RIM (the makers of Blackberry have licensed certain patents from Microsoft). We will have to wait and see how it is incorporated into its new OS - the Blackberry 10 smartphones.