Copy That: Jannat 2 in Copyright Controversy

This is not something new in the Bollywood history and specially when we talk about a renowned film camp like Vishesh Films. But this time, the act of copyright infringement is of a different style in the sense that the controversial movie Jannat - 2 is alleged to be based upon the script written by a Mumbai-based writer Kapil Chopra. 

Allegations. 

Before release of the movie Jannat -2, in May this year, Kapil Chopra filed a case of plagiarism against the Bhatts, the makers of Jannat 2, alleging them to have stolen his script for the same, which he had with the Film Writers Association way back in 2007.

In a court hearing in the month of July, it was revealed that Chopra had met Jannat 2's director Kunal Deshmukh a couple of times when he narrated his story, also he had left a bound copy of the script with the director. But he got no response from the director.

Remedy Granted. 

As a remedy granted by the Bombay High Court to the complainant, it ordered the Bhatts to deposit Rs 10 lakh, as the amount for the conditional order that they can release the satellite rights of Jannat 2.

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ICANN Arbitration denies Google's claim

An ICANN-approved arbitration body decided the arbitration award against Google, denying its complaint involving the domain Oogle.com. According to the complaint filed by Google, the concerned domain is confusingly similar to its own. Therefore, as a remedy, it sought the same to be transferred to it.

Facts. 
A complaint was filed by Google with the National Arbitration Forum (NAF). NAF is body that resolves disagreements under its Uniform Domain Name Dispute Resolution Policy (UDRP). It has been approved by Internet Corporation for Assigned Names and Numbers (ICANN) to perform dispute resolution function.

Dispute Involved.

1. Google in its claim has alleged that Oogle.com is confusingly similar to its trademark as it merely the name Oogle merely lacks one letter from its name. Thus it appears to be intended to procure benefit from frequent user misspellings or typographical errors, according to the ruling issued by the arbitration forum. In other words, conduct by the owners of the domain name Oogle falls in the category of "typosquatting". 
2. Oogle.com's home page has historically mimicked the look and feel of Google's.
3. Oogle.com was registered in bad faith, as the Google trademark was registered in 1997, much before Oogle.com's registration (registered on Feb. 7 1999 by Christopher Neuman). Google being a well known name, it is unacceptable that Oogle.com was registered without independent knowledge of Google.

Pleadings by Defendant.

1. Oogle.com was registered on Feb. 7 1999 by Christopher Neuman, who was 13 years old at the time and has remained in his ownership since then. The name Oogle.com was chosen because Neuman came to know about another young software programmer named Justin Tunney, who used the online moniker "Oogle" or "Criminal Oogle". Noticing that Tunney had registered Oogle.net, and not Oogle.com,  Neuman proceeded to register the domain because he intended to collaborate on a website with Tunney.
2. The Oogle.com was served as a shopping site between 2000 and 2002 and programming-related website in 2002 and 2003, according to Neuman.
3. Accepting the contention of Plaintiff that Oogle.com offered sexual services and displayed pornographic and profane content, Neuman who said the domain was temporarily used in connection with "adult matchmaking services," which he considered as a lawful and permissible practice.
4. In 2010, during a few weeks where Oogle.com displayed a logo that resembled Google's, with a tag line saying: "Due to the economy the G has been laid off." "At the time we thought it was a funny and innocent usage, however upon reflection, I had it taken down after only a matter of weeks," Neuman said.
5. Replying the contention of the Google that the Defendant offered the domain name to Google for $600,000, Neuman told the arbitration forum that "there is nothing inherently wrongful in offering to sell a domain name for in excess of out of pocket expenses, when the domain name was registered in good faith to begin with."

Issues to be considered. 

According to ICANN policy rules, Google had to prove that:

1. the domain name is confusingly similar to a trademark or service to which it has rights; 
2. the Defendant has no rights or legitimate interests in the domain name; and 
3. the domain name had been registered and was being used in bad faith.

Award of the Forum.

1. While the panel found the explanation of the Defendant "extremely suspicious" for coming up with the name Oogle, it said it did not have the authority to ascertain whether the claims of the Defendant were credible.
2. Also the panel found no answer of the issue as to whether Google had the rights to the Google trademark as it apparently did not own any trademark registrations for the name when Oogle.com was registered. It added that the company had received little media attention at the time.

As all three elements required under the ICANN policy were not fulfilled, Google's claim was denied and the rights of the Defendant to keep the Oogle.com domain name was upheld by the arbitration forum.

 Two persons were arrested by the Delhi Police for manufacturing and selling footwear in the brand name of PUMA.  Accused have been remanded to  police custody by  Delhi Court. Arrest was made following the complaint of representative of PUMA.

 A person by name Karan chopra a owner of the footwear shop has been released on bail. In  another search conducted on the shop owned by Manjeet Singh where a number of footwear were stored and  have been seized Ravi and Manjeet have disclosed names of other manufactures from whom they used to get the supply of this fake branded footwear. 

Source

ECJ okays resale of softwares.

European court of Justice in its ruling on 3rd July 2012 ruled that trading of used software licenses is legal and that the author of that software cannot oppose such resale. This judgment makes  exhaustion doctrine applicable for "software licenses".

Oracle Corp, the software giant, lost itschallenge seeking to prevent the German company Used soft from selling computer soft wares and licenses no longer used by the original owner.

Oracle develops and distributes software through internet which can be downloaded freely from oracle's website.After downloading the software,  user has to obtain a user- right which is in the form of a license agreement, which grants him a right to store the program permanently in his server and also to allow access to 25 users. User is even allowed to download any updates or any correction for faults of the program from Oracle's website. But  license agreement has a "non - transferable" clause which restricts the user from transferring it to others for an unlimited period.

Used soft  markets already marketed and licensed  software of Oracle. Oracle made a  complaint against Used Soft in German Courts which requested the advice of ECJ on the issue.

ECJ was called to examine the exhaustion doctrine under Directive 2009/24/EC of the European parliament and the council of 23rd April 2009 on the legal protection of Computer programs. Article 4 of the said Directive reads as follows: 

"The first sale in the community of a copy of a program by the right holder or with his consent shall exhaust the distribution right within the community with exception to control further rental of the copy"

ECJ while interpreting this provision in the current case said that in case a copyright holder enters into a license agreement, in return for a payment of a fee, then such an agreement would amount to sale of that copy and hence right holder exhausts his rights upon such copy. Thus a "non- transferable " clause in a license agreement can no longer be valid within EU.

Further Court did place some limits on resell , firstly in case of  multiuser license it is not permissible to split up the license and sell them separately and secondly after reselling the software the original licensee shall make his own copy unusable.

Though this interpretation protection protects the interests of the consumers, it would be a blow to the business patterns of software giants who invariably inserts such clauses into licensing agreements. Further the idea that the original user shall make his own copy unusable appears to an inoperable idea.

Full Judgement available here

First to File system to face Judicial scrutinty

An American Inventor, Mark Stadnyk and his company Madsatd Engineering Inc is now challenging the Constitutional validity of USA's new patent regime under the America Invents Act of 2011 which replaced the "First to invent" with  "First to file".

Mark Stadnyk has sued the USPTO,its director, David Kappos  and the United States of America before the United States District  Court for the Middle District Florida Tampa Division.

Contentions raised by the Plaintiff

• Mark stadnyk claims that the First inventor to file system is a " smoke screen", in the sense that in reality patents would be granted only to the person who have filed the application early regardless of whether the applicant is the first inventor of the system
• The "First - to- file " system violates the intellectual property clause of US constitution as this would allow patents only to  the "winners of race", ignoring the actual inventors of genuine discoveries. Further he points out that First- to - File system was rejected in the early years of US IP regime especially by Thomas Jefferson, one of the members of original patent board in some early cases.
•  "First- to - File " system would discourage innovation as  individual inventors, start ups, small business and research organizations lack the resources to compete with the big corporations in the race to file applications with PTO. 
• He calls the Act per se discriminatory against small inventors, universities and independent research institutes which is basically the backbone of every nation's innovation.
• AIA and the First- to- File system would only increase the back log of cases within the USPTO and would increase the duration of entire process.
• Further he points out that since AIA is concerned with the First- To - File system the inventors and entrepreneurs are now forced to invest a large amount for protection of computer data to prevent others from having access to R&D of their company. He claim that Madstad Engineering Inc, itself have invested $3,500,00 for additional computer security measures.

Mark Stadnyk claims that AIA has thus caused irreparable harm to plaintiff's business, property and constitutional rights and hence ask the court to restrain USPTO and US Government from using AIA's provisions against him.

It would be interesting to look into the proceedings of the case and how the Federal Court is going to determine the constitutional validity of the new  "First- To - File" system.

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No relief for ITM Trust in trademark infringement case

Bombay High court rejected an application for relief in a trademark infringement law suit filed by the educational trust ITM  and its trustees against Educate India Society.

ITM trust, a registered public trust engaged in educational activities has filed for an permanent injunction against Educate India Society for infringement of their trademark " Institute of Technology and Management" and "ITM". 

ITM Trust argues that they were registered with the charity commissioner since October 1993 and have established various educational institutions and offered various courses in the field of technology, management and their institutions were notified as ITM university by the Chattisgargh government and also  recognized by AICTE for several years.

ITM trustees claims that only recently they came to knew about the use of their registered trademark by Educate India Society, that too from a student who was seeking admission with their institute. They claim that since their trademark is registered and is still operative, the court shall grant them an injunction against TM infringement.

The defendants, Educate India society is also operating educational institutions since 1996 in the fields of technology, management and law and also have been notified as private university by the Haryana Government as ITM university in Gurgaon. Their institutions are also recognized by AICTE and UGC. 

Bombay High court Judge ,Justice Bhushan Gavai after considering all the relevant factors have rejected the injunction application stating that it is difficult to believe that students of this era seeking admission for higher education would be confused or deceived by any similarities in trademarks of both the parties.The students seeking admission for higher education are bound to look into all the credentials of the institutes concerned and should apply their mind to find the best institute of the basis of available information.

Find full judgement here 

15% increase in the number of fake products seized at EU borders in 2011

According to the European Commission’s annual report on customs actions to enforce intellectual property rights (IPR), released on 24^th July, 2012, over 115 million fake products (dealing with more than 91,000 cases) were seized by the Customs officials stationed along the European Union’s external borders in 2011, which was estimated to be 15% more than articles seized in 2010 (dealing with about 80,000 cases, seizing about 103 million articles).

China was at the top of the list of source countries for counterfeit goods last year. Also several EU member states have come into picture as countries of origin for different categories of fake products.

Given the increase in the quality and diversity of counterfeit products, the European Commission has recognised the industry’s important role in tipping off officials about IPR infringements.

Find full Report here 

Setback to Kodak

In a patent suit involving Kodak on one hand and Apple and RIM on the other,  Kodak has faced setback, when the patent controversy regarding digital image previews was decided against it. The patent described a system for previewing images on digital cameras and was considered as one of the most valuable one in Kodak's portfolio.

When it began?

It was in January 2010, when Kodak filed a suit and thereby made an attempt in obtaining licensing fees from RIM and Apple for using technology, which according to it was relating to the way digital images are previewed on a screen. According to Kodak, the same technology was patented by it. Kodak was seeking over $1 billion from Apple alone. 

Decision given. 

The International Trade Commission (ITC), in consensus with a judge’s ruling ruled that neither Apple nor RIM has violated Kodak’s patent for digital image preview inviting an injunction to prevent imports of defendants products to the market

Consequences ahead. 

This decision can be a grave setback to the Plaintiff as it has filed for Chapter 11 bankruptcy in January. It had the hope of selling its patents in order to revive the company. Now without the image previewing patents the value of its patent portfolio could fall significantly giving more trouble to already bankrupted company.

Source

Patent War on Twin Spark Technology

Since 2007, the patent war in the arena of technology had dragged the auto giants like TVS and Bajaj in the court of law. When TVS was dragged in the court for unauthorized use of the technology called Digital Twin Spark Plug ignition (DTSi) in its bike Flame.

What is DTS-i?

DTS-i technology is based on two Spark plugs. It delivers better fuel efficiency and lower emissions.

DTS-i Engine was later tuned to deliver exhilarating performance as in DTS-FI or exceptional mileage like in DTS-SI as claimed by Bajaj. 

The Patent Controversy.

The case involves the issues of patent infringement by the defendant and the damages for the same. But the case, further, touches upon the controversy regarding justification of the threats issued by the defendant of the same case. The case was filed before the Madras High Court in 2007.

The plaintiffs in (Bajaj Auto Ltd), along with the state of Maharashtra alleged the defendants (T.V.S. Motor Company Ltd.) of infringement of the patents of the plaintiffs, which concerns the invention of the technology of improved internal combustion engine. The remedy sought by the plaintiffs is that of permanent injunction for prohibiting the defendants from

1. using the technology or invention described in the patents of the plaintiffs; and
2. preventing them from marketing, selling offering for sale or exporting 2/3 wheelers (including the proposed 125cc TVS FLAME motorcycle) that contain the disputed internal combustion engine or product that infringe the patent. They also claim damages for infringement of the patent.

Background of the Case.  

Bajaj’s patent. Bajaj Auto Limited (the appellant) claimed that it was granted patent titled “An Improved Internal combustion engine working on four stroke principle” with a priority date of 16th July 2002. The patent was granted on 7^th July, 2005. 

Features of the invention are:

• Small displacement engine as reflected by a cylinder bore diameter between 45 mm and 70 mm.
• Combustion of lean air fuel mixtures;
• Using a pair of spark plugs to ignite the air fuel mixture at a predetermined instant.  

What was the Patent all about? The subject-matter of the patent, the invention by the applicants called DTS-i Technology was relating to the use of twin spark plugs for efficient combustion of lean air fuel mixture in small bore ranging from 45 mm to 70 mm internal combustion engine working on 4 stroke principle.

   

Tests of Patentability. According to the applicants, their invention was patentable because it qualified the tests of novelty, non-obviousness and industrial application. Following were the grounds on which the applicants corroborated their claim:

1. The use of two spark plugs in large bore engines or in high performance or racing bikes was known in the Automobile industry. But the invention of the appellant was not known in the industry.
2. The applicants claim that the need to have more than one spark plug was never thought necessary in small bore non-racing engines. Even if it was felt so, no advantages of a dual spark plug were observed. The invention of the applicant was on the application of twin plugs in small bore engine with positive merits of improved fuel efficiency and emission characteristics. In case of the small-bore engines using twin spark plugs, those engines were not lean burn.
3. In the first eight months of the that financial year, “DTS-i Technology” accounted to 54.25% share of Bajaj two wheelers. Applicants claimed that they spent considerable amount in marketing and advertising and received appreciation through out the world as recipients of various world awards and the product is of economic advantage of the country. 

TVS launches FLAME- the Bone of Contention. The Respondents, (M/s. TVS Motor Company Limited) announced to launch motor bikes of 125-CC on 14^th December 2007 under the trade mark 'FLAME'. The motorcycle was powered with a lean burn internal combustion engine having a twin spark plug configuration, which according to the Bajaj Auto Ltd., infringes its patent.

 

Therefore, before the launch of motor bikes, the applicants brought the suit before the court to protect their patent.

TVS files suit under section 105 and 106 of the Patents Act, 1970. In October, 2007, the respondent filed the suit before the Madras High Court, alleging that the statement made by the applicant constituted a groundless threat.

They learnt that the respondent has also filed a suit for defamation against the applicant in the Bombay High Court. 

Application for revocation of the applicant’s patent. The applicant also came to know that only 7 days before the launch of the proposed 125-CC motorcycle, the respondent filed an application for revocation of applicant's patent before Indian Patents Appellate Board (“IPAB”). 

Launch of the disputed bike. The respondents, later in the month of December of 2007, launched the bikes without making any change into that.

Contentions of the Parties.

Pleadings by the appellants. Following were the pleadings made by the applicants in their affidavit:

1. The patent granted to the applicant is valid and subsisting; 
2. The respondents can not save its skin by claiming that it is using 3 valves in the engine since the number of valves is not an essential feature of the applicant's invention; 
3. The specifications of the respondent’s TVS Flame have the similarities with the patenting technology of the applicant; 
4. Grant of injunction is essential to protect the statutory right of monopoly conferred on the applicant by virtue of the patent. Otherwise, its use by the respondent would severely prejudice the statutory right apart from damaging the reputation and goodwill, which cannot be compensated in pecuniary terms; 
5. The damage caused by the infringing act, will have telling effect on the market share loss, relative position in the industry, impact on competitiveness, impact on industry rankings etc. of the applicant, which cannot be measured in terms of money; and 
6. The applicants have launched its motorbike with effect from the year 2003 and steadily increased the sale in these long four years, whereas the respondents have launched “FLAME” only on 14.12.2007 and they have not sold the said motorbike on an extensive scale and therefore.

Pleadings by the respondents.  

To sum up the arguments forwarded by the respondents, following were the grounds used by the respondents to challenge the patent of the applicants:  

1. The concept of two spark plugs being prior art: The respondent places reliance on various published papers to substantiate its claim. They also plead that the use of twin spark plugs in lean burn engines is known as US Patent No. 5320075 titled “Internal Combustion Engine with Dual Ignition for a lean burn”.
2. Use of two spark plugs in engines with narrow bore size of 45mm-70mm being prior art: The respondent has also referred to Takegawa Cylinder heads and Honda Bros, NC 25E. Kawasaki KZ 1000 SI and Kawasaki KZ 1000 SI have the configuration of two valves per cylinder with twin plugs, cylinder bore size is 69.4mm. Honda NT 400, as per the specification stated in the advertisement, contains 2 cylinders with each cylinder has a bore size of 64mm with 2 spark plugs per cylinder. 
3. The third valve arrangement of the respondent is protected by patent licensed to it by AVL List GMBH: According to the respondent, the spark plugs in the engine in its vehicle “FLAME” are arranged in a different way in comparison to what is claimed by the applicant's patent. 

Judgment Delivered by the Court.

The learned single judge, after considering the submissions of both parties and considering various facets of the case came to the conclusion.

The court relied upon the principles in granting interlocutory injunction including any patent action. The principles are:

1. The plaintiff must prove prima facie case that the patent is valid and infringed;
2. Balance of convenience is in favour of plaintiff; and
3. Irreparable loss that may be caused to the plaintiff by not granting an order of injunction.

After considering the pleadings and various facets of the case, the learned single judge held that the concepts of prima facie case, balance of convenience and inadequacy of damages was in favour of the applicant. The grant of injunction was in favour of the applicant. Thus, the interim injunction was granted in favour of the applicant.

Appeal and Judgment.

The interim order was challenged before the Division Bench of the Madras HighCourt, where the appeal was allowed.

The appeal finally went before the honourable Supreme Court (Markandey Katju and Ashok Kumar Ganguly JJ.), through the Special Leave Petition. In the matter before it, the Supreme Court criticized the pendency of the matters relating to the intellectual properties, even at interlocutory stage. The suit for the permanent injunction was also pending before the court.

Quashing the order granting the interim injunction to applicants, the Court held the Respondents entitled to sell its product in the market, but maintaining an accurate record of all India and export sales. The Court appointed a receiver for the same.

The Court also directed the learned single judge to decide the suit of permanent injunction and directed the Respondents to file written statement in the suit.

Source
 

Re thinking Intellectual Property Rights

The centre for Intellectual property rights, Cochin University of Science and technology, announces its third annual national workshop for law students on Re-thinking Intellectual Property Rights.


Theme for conference for 2013 scheduled from January 10th- 13, is Patents and Access to Medicine for All. Law students are required to write on any sub themes which include:

• Preserving public domains: Role of Patentability standards
• Promotion of Innovation:Limitation of exceptions to patent rights
• Public health: Limitations to compulsory licensing and parallel importing
•  Traditional Knowledge: new challenges to patent laws
• Re thinking Patent rights: Should it be Individual private property or collective property?

Last date for submission of abstracts is 15th August 2012 and of final paper is 30th September 2012.

42,000 patent applications filed in 2011

According to an official statement from the Commerce and Industry Minister Anand Sharma, 42,000 patent applications were filed in 2011. Such a huge number of patent applications indicates rising trend of patent filings.

Commerce and Industry Minister Anand Sharma inaugurated the Rajiv Gandhi National Institute of Intellectual Property Management (NIIPM) building at Nagpur, emphasising upon the recognition by the country of need for creating a pool of trained professionals to evaluate and assess the applications.

The Ministry also has plans to establish the India Intellectual Property Foundation at NIIPM, with collaboration of CII and World Intellectual Property Organisation (WIPO).

In the wake of increasing workload of patent application, Indian Intellectual Property Office (IPO) has recently recruited 257 examiners of patents and designs, who will undergo a comprehensive one-year training at NIIPM.

source 

Apple finally grabs apple.co.uk

Apple after 16 years of its online presence in UK has finally managed to grab the domain name apple.co.uk, which was previously used by a British Company, Apple illustration.

The change of ownership appeared to have occurred on July 6th. It appears that Apple has entered into a settlement with Illustration company as no records of cyber squatting complaint is found with Nominet, the .co.uk register.

Red bull Wins trademark battle

The energy drink company "Red bull" succeeded in its trademark infringement suit against Sun Mark Inc for  use of trademark  "Bullet" for their drinks and also for advertising slogan "No bull in this Can"

 The defendants, Sun mark and associated shipping sea Air & Land forwarding used the trademark "BULLET"for their energy drink. Red bull alleged that Sun mark's use has violated rights of Red bull in their mark "BULLIT" for energy drinks.

London High Court Judge, Mr Arnold siding with Red Bull's claim opined that Sunmark's use of "Bullet" is capable of creating a likelihood of confusion among the customers that it belong to Red bull. Further he added that use of  "no bull ...." slogan amounted to taking unfair advantage of repute of Red Bull.

But many including Sun mark's founder Dr Ranger finds Red Bull's acts as bully - boy tactics and unnecessary. Sun mark  now plans to prefer an appeal against this judgement and stated that Red bull's trademark bullit was registered in bad faith and the company had no plans to use it.

Source

Facebook, Amazon, Oracle, Linkedin, Citigroup, Morgan Stanley & More in IP Conflict

In a patent trolling operation, Parallel Iron has sued a bunch of tech companies and banks because of the file systems they use.

The lawsuits were filed in April and those lawsuits were refiled in June. It also filed a bunch of new lawsuits, some of which were more specific about the file system. For example, in the Facebook and Amazon cases, the concerned file system is the Hadoop Distributed File System (HDFS). In the Oracle suit, it's parallel Network File System (pNFS). Amongst all the defendants, EMC seems to be the only company who tried to first sue for declaratory judgment in a different venue. But still EMC has been dragged in the lawsuit with all the others in Delaware on the same day that EMC filed its own suit in Massachusetts. 

The facts of this suit suggest that the four inventors on these patents made some amazing breakthrough, and everyone else copied it: 

"In this technological age, we take for granted the ability to access tremendous amounts of data through our computers and the Internet, a process that seems effortless and unremarkable. But this apparent effortlessness is an illusion, made possible only by technological wizardry. The amount of information that is used by many companies has outstripped the storage capacity of individual memory devices. The information must be stored across hundreds or thousands of individual memory devices and machines. The ability to keep track of information as it is distributed across numerous devices and machines, while still allowing users to retrieve it seamlessly upon request, is a feat that was impossible until recently. It was made possible by the innovations of technological pioneers like Melvin James Bullen, Steven Louis Dodd, William Thomas Lynch, and David James Herbison.
Bullen, Dodd, Lynch and Herbison were, among others, members of a company dedicated to solving the difficult problems that limited the capacity of computer technology and the Internet, particularly problems concerning data storage. These engineers found innovative solutions for these problems and patented several technologies for data storage, including the ones at issue in this case. Many of the data-access feats we take for granted today are possible because of the data-storage inventions of Bullen, Dodd, Lynch and Herbison."

The patents in question are 7,197,662, 7,543,177 and 7,958,388, which are for "methods and systems for a storage system." The original filing dates for the patents in question come into picture around years 2002 and 2003. For Example, the year 2002 witnessed the original filing date of the 7,197,662 patent.