Google’s ambitious but controversial project of digitising all the books in the world has hit another speed bump. A US District court denied approval of the proposed Amended Settlement Agreement to be entered between Google and various authors and the Authors Guild. The Court stated “The question presented is whether the ASA is fair, adequate, and reasonable. I conclude that it is not.”

To briefly sum up the facts of the case- The Authors Guild and others had sued Google in 2005 for copyright infringement for Google digitizing millions of books that were under copyright. The authors also sought injunctive relief. In 2006 negotiations for settlement began. In 2008 the parties filed a proposed settlement in the Court. This however triggered many objections. In 2009 the Amended Settlement Agreement (“ASA”) was filed for which notice was circulated. Once again hundreds of objections were raised; the court conducted a fairness hearing in Feb 2010.

The Court rejected the ASA stating “While the digitization of books and the creation of a universal digital library would benefit many, the ASA would simply go too far……It would permit this class action–which was brought against defendant Google Inc. to challenge its scanning of books and display of ‘snippets’ for on-line searching–to implement a forward-looking business arrangement that would grant Google significant rights to exploit entire books, without permission of the copyright owners. Indeed, the ASA (Amended Settle Agreement) would give Google a significant advantage over competitors, rewarding it for engaging in wholesale copying of copyrighted works without permission, while releasing claims well beyond those presented in the case.”

To read the Court’s Decision on the matter please click here

Nortel, once one of the largest telecom companies in the world but presently doomed by bankruptcy, has chosen Google’s $900 million bid for its patent portfolio as the stalking horse bid. This does not imply that Google will automatically emerge successful and own Nortel’s massive collection of telecoms patents, but Google is definitely the preferred buyer.

Google, in recent history has been the target of many patent litigation suits and has been pressing for patent law reforms. Google says that the reason it does not have a patent portfolio as rich as some of its rivals like Oracle and IBM is because it is comparatively a newer company. If Google is successful in getting its hands on Nortel’s portfolio of 6,000 patents , it could serve as a protective armour against possible future patent litigations. However it must be noted that that both Apple and RIM have shown active interest in the portfolio, too.

According to Nortel the patents cover “a broad range of wires, wireless and digital communication technologies” -including 4G wireless, data networking, optical, voice, internet, internet service provider, semiconductors and other patents. Success in this auction could go a long way in defending Google’s Android mobile operating system ,over certain aspects of which, Oracle has sued it. In its official blog Google said that “The patent system should reward those who create the most useful innovations for society, not those who stake bogus claims or file dubious lawsuits. It’s for these reasons that Google has long argued in favor of real patent reform, which we believe will benefit users and the U.S. economy as a whole.

But as things stand today, one of a company’s best defences against this kind of litigation is (ironically) to have a formidable patent portfolio, as this helps maintain your freedom to develop new products and services. Google is a relatively young company, and although we have a growing number of patents, many of our competitors have larger portfolios given their longer histories.”

The number of European patent applications continues to increase, but the EPO is granting fewer patents. Last year, the EPO received a record total of 218 200 patent filings, compared to 210 600 the previous year. At the same time, the 54 700 European patents granted in 2007 represented a decrease of 12.9% over the previous year (62 800 granted patents).

Top filers at the EPO

The proportion of applications originating from the 32 member states of the European Patent Organization remained almost stable at 48.5%, following a decrease of 1% to 48.6% in 2006. Germany once again topped the table with 17.9% of the total (25 176 applications), followed by France with 5.9% (8 328) and the Netherlands with 5% (6 999).

Among the non-European countries, the USA and Japan maintained their dominant share of the total number of European patent applications in 2007, amounting to 25.3% (2006: 25.8%) and 16.3% (16.4%) respectively, whilst South Korea accounted for 3.5% (3.4%).

US companies filed 35 590 European patent applications (2006: 34 790, +2%), Japanese companies 22 890 (22 140, +3.4%) and South Korean companies 4 930 (4 590, +7.3%). With a total of 1 145 European filings, China sharply increased its number of applications by 59% and now ranks among the five most active non-European applicant countries.

To the great relief leading organisations whose trade marks are regularly being infringed by unprincipled elements, The Gujarat High Court have ruled that a registered trade mark owner has the right to restrict others using their trade mark for different class or goods. It has ruled that a registered trade mark is infringed by a person who, not being a registered proprietor or a person using by way of permitted use, uses in the course of trade, a mark which is identical with or similar to the registered trade mark and is used in relation to goods or services which are not similar to those for which the trade mark is registered.

A recent Bollywood movie named ‘Thank You’ starring Akshay Kumar which was released on the 8th of April 2011 appears to be embroiled in multiple litigations. The following are brief summations of the same:

Trouble with the Title: Fisheye Networks filed a suit against, inter alia, the producers of the movie ‘Thank You’attempting to restrain them from releasing the movie claiming that Fisheye has rights over the title ‘Thank You’ as they had registered the same with the Association of Motion Pictures and TV Programming in 2005. Justice Dr. D. Y. Chandrachud dealt with the matter giving a succinct and insightful order which is reproduced herein below:

“The film industry basically operates through three associations the Association of Motion Pictures and T.V. Programme Producers (the First Defendant), Film Makers Combine (the Second Defendant) and the Indian Motion Pictures Producers Association (the Third Defendant). The Plaintiff has relied on a custom or trade practice under which a title is registered with one of the associations of which the registrant is a member. Before registering the title the association verifies with the other associations as to whether the same or deceptively similar title has been registered with another association. In the present case, it is contended by the Plaintiff that the title “THANK YOU” was registered by it with the First Defendant in 2005. On this basis, it has been contended that when an attempt was made by the Fifth Defendant to use the same title, objections were lodged by the Plaintiff with its own association, the First Defendant.

4. No statutory basis has been set up for the trade practice or custom which forms the foundation of the suit. Prima facie, there is no copyright as such in a mere title. The Plaintiff has not come before the Court with a case that it has acquired a goodwill or reputation in the use of the title or secondary rights in association with the title. The Court is not inclined to accede to the prayer for the grant of an ad interim injunction since the balance of convenience must weigh against the grant of an injunction at this stage. The Plaintiff was aware as far back as on 5 May 2010 that the Fifth Defendant was using the title “THANK YOU” which is evident from a letter addressed by the Plaintiff to its own association, the First Defendant. The Court has been informed that the film which has been produced by the Fifth Defendant is due to premiere on 7 April 2011 and is slated for a worldwide release on 8 April 2011. The learned senior counsel for the Fifth Defendant has stated that an amount of Rs.60 Crores has been spent on the making of the film. The music release took place well over a month and a half ago. In this view of the matter, particularly having regard to the fact that there is prima facie no copyright as such in a title, the Court would not be inclined to grant an ad interim injunction especially at this stage. The Plaintiff has an alternate claim in damages. Ad interim relief is accordingly refused. ”

Thus, it must be remembered that even if there is no copyright in a title one may register the title as a trade mark and build goodwill on that. This route would preferable to registering the title with an association which provides no statutory protection.

Trouble with the Song: Feroz Khan Films the producers of the original 1986 movie which originally featured the Famous song Pyar Do Pyar Lo instituted a suit for infringement of Copyright against the producers of Thank You in the Bombay High Court. Feroz Khan Films also filed an Interim Injunction from the High Court for restraining UTV from using the impugned song. Feroz Khan Films alleged that the UTV had not sought a license and thus had no right to use the use the song. The Bombay High Court refused to grant the injunction stating that there has been a gross delay in filing the suit and that the injunction cannot be granted at this stage.

A delay in filing an application for injunction can be fatal to the application. In another recent case, one Mr. Faraaz Ahmed, sought an interim order against the release of a cinematographic film by the name of “Chalo Dilli” which was due to be released the day after the order by Justice Dr. D. Y. Chandrachud, which was passed on the 28th of April 2011. The Plaintiff alleged that he has written the lyrics of one of the songs featured in the movie. The Plaintiff claimed authorship based on the fact that on the 27th of December 2010 the Plaintiff registered the song with the Film Writer’s Association. The Hon’ble Bombay High Court stated that:-

“At this stage, the Court would not be inclined to grant an injunction on the release of the film. The promotional activities commenced from 1 April 2011 and the music launch took place on 5 April 2011. The Plaintiff has moved the Court virtually on the eve of the release of the film. However, it has been submitted in the alternate that a direction should be issued to the Second Defendant to ensure that due credits for the song are contained in the prints of the film. Learned counsel appearing on behalf of the Second Defendant states that all the prints have already been released since the film is to be shown in the theatres from tomorrow. Prima facie a direction of the nature which is sought cannot be granted at this stage until the Court is satisfied with regard to the authorship of the song. However, having regard to the fact that the Plaintiff has prima facie shown that he had obtained registration of the lyrics on 27 December 2010 with the Film Writers’ Association, the ends of justice would be served if the Defendants are directed to deposit a reasonable sum as and by way of security.”