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May 19

RKD NewsNet May 2019

Compiled by: Adv. Sachi Kapoor & Adv. Aboli Kherde | Concept & Edited by: Dr. Mohan Dewan

Apple to sue apples round the globe!

Apple Inc. is well known for actively protecting its coveted ‘bitten Apple’ logo all around the world. The company, having established one of the most sought after brands in the international market, leaves no stone unturned to protect its intellectual property from any chance (even the slightest chance) of being misused.

One such case is Apple’s recent law suit against ‘Apfel Route’ a mark adopted by the Rhein-Voreifel Tourism for its brand new themed cycling route in Germany. The official website of Apfel Route states that it will be launched on May 19, 2019. Some would ask, why use an Apple in the logo for a cycling route. The website does throw light on that too. Apparently, Rhenish Apple Route is a 120 km long route through the largest fruit and vegetable growing region in North Rhine-Westphalia. It consists Apple and Cherry orchards in the mountains of Eifel on the horizon to Rhine.

The logo of Apfel Route was approved by the German Patent and Trademark Office (GPTO). However Apple has now raised an objection for its grant.

Though prima facie, there seems to be no likelihood of confusion when the two logos are compared, we await a technical review from the GPTO. Watch this space for more updates in the matter.

   
APPLE INC.’S APPLE  RHINE-VOREIFLE TOURISM’S APPLE 

 

The images used herein are only for representational and academic purposes and we do not claim any copyright in them.

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Bali Copyrighting all Balinese heritage objects

Bali- the island of thousand temples (literally!); an epitome of cultural richness, brings to the mind historic statues, temples, monuments, etc. with intricate designs and spectacular motifs. Bali is known globally, for its cultural variety such as the sacred dances of rejang dewa and topeng tua, the Titi Banda Statue, Bajra Sandhi Monument and much more. Travellers revel amongst numerous stories related to various gods, kings and queens at almost every cross road! As for the locals, they are said to respect their cultural practices just as much as their livelihood. Incidentally, tourism is a major source of income for Bali.

For such places, where travel and tourism is a dominant source of income, protecting their uniqueness, sanctity and authenticity becomes very important. Recently, Bali’s administration has decided to regulate Bali’s cultural assets from being pirated. The regulations would protect various cultural activities, structures, dances, music, which can be attributed to Bali, from being misused without authorisation.

Recent reports suggest that Malaysia once used one of Bali’s famous dance forms as a part of its own promotional campaign.

It is also reported that the proposed regulation obliges the Bali administration to facilitate copyrighting all Balinese heritage objects, as well as provide funding for local artists and craftsmen that produce such objects. Funding for copyright protection of heritage objects will also be provided by local craftsman and artisans.

   

The images used herein are only for representational and academic purposes and we do not claim any copyright in them.

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VCG claims copyright over Black Hole Photograph

Very few people are aware of the fact that the Black Hole’s photograph was not taken by a traditional camera with optical lenses! No, there was no “Clitchuk” sound and flash when they produced the image. The Black Hole’s image consists of the measurements of the radio waves emitted by the Black Hole. These measurements were taken from numerous locations, using several ground-based radio telescopes known as the Event Horizon Telescope (EHT). The measurements from all locations were combined and converted into the visual that we all know as the Black Hole’s first image. This image is being circulated all over the internet since a month.

Unknown or rather indifferent to the elaborate process of the genesis of the Black Hole’s image, a Chinese company, Visual China Group (VCG), claimed copyright ownership to this “photo-graph”.

This image of the Black Hole, released by the European Southern Observatory on April 10th, 2019 was released for free distribution via the Creative Commons Attribution 4.0 International license. Unknown to this also, the VCG listed image for sale with its own watermark running across the image. Chinese authorities have now ordered take-down of this image by the VCG. The Company was later reported to have issued an apology letter citing lack of oversight over the uploaded content.

The image below is only used for representational/ educational purposes and we Obviously do not claim any copyright in the same.

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Innovative!ndia: Rise in Patent Filings in India

The awareness for protection of intellectual property rights in India is on an evident rise. It has been reported that more than 2000 international patent applications were filed from India in the year 2018 at the office of World Intellectual Property Organization (WIPO). This is calculated to be a leap of around 27% from the number of patent applications filed in 2017. Statistically speaking, a growth by 27% is said to be the highest growth rate for any country. Within the country, India has witnessed around 50,000 patent application filings in 2017-18 alone. India’s success also reflects in its rise in the rankings of the US Chamber of Commerce’s International Intellectual Property (IP) Index which we reported a few days ago.

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Nippon or not Nippon?!

The story began with a Saudi Arabian company named YANBU Steel Company (YANBU), which found quality issues in a few Carbon Seamless pipes delivered to it. These pipe are used for laying pipes in oil plants. They were sold to YANBU under the mark of the world renowned steel company Nippon Steel Corporation. Nippon Steel is the world's third largest steel producer by volume as of 2017. Unhappy with the quality of the pipes, YANBU lodged a complaint with Nippon which led to the investigation of the origin of the sub-standard pipes. It was found by Nippon that 2 individuals by the names of Kishor Jain and Jeetendra Burad ("Defendants") were infringing upon the trademarks of Nippon Steel. Nippon Steel filed a suit against them in the case of Nippon Steel & Sumitomo Metal Corporation vs. Kishor D Jain & Anr. at the Bombay High Court.

The court appointed a court receiver and ordered a thorough inspection of the activities taken up by the defendants. It was revealed that the defendants were not only infringing the trademarks of Nippon but also indulging in forgery. The defendants had ‘affixed’ the trademarks of Nippon on the products and also had forged inspection reports and certification on behalf of Nippon. This led YANBU to believe that the pipes being provided were in fact products by Nippon Steel.

The Court on April 15, 2019 observed that this case was to be treated strictly since not only were the trademarks of Nippon being infringed but the products on which they were affixed were those which are used in highly sensitive areas such as oil rigs/oil plants. The Court went on to say that, any sub-standard quality products laid down in an oil plant could lead to disastrous consequences. In order to deal with the defendants in a strict manner and to send out a strong message to such unscrupulous entities, the Court ordered the defendants to pay damages worth INR 5 Crores (USD 720 thousand, approx.) towards Tata Memorial Cancer Hospital before April 23, 2019, though no amount of damages can be equated to the gross wrong committed.

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Copyright registration per se is not sufficient to establish user claim in trademarks

In India, trademark labels can also be registered under the Copyright Act irrespective of whether such labels have any artistic content. Often these labels registered under the copyright law are used by their owners in infringement and passing off proceedings under trademark law. In M/S Khushi Ram Behari Lal v. M/S Jaswant Singh Balwant Singh W.P.(C) 7983/2012 & CM APPL. 19969/2012, the Delhi High Court held that copyright registration, cannot per se be a proof of ‘Use’ of a trademark. Both the parties to this Writ Petition are engaged in processing, marketing and exporting rice in India.

While the Petitioner, i.e. M/s Khushi Ram Behari Lal (“KRBL”) applied for registration of a device mark (“KRBL’s mark”), the Respondent had already registered the word mark “TRAIN” basis which it opposed the KRBL’s TM registration application. The Respondent placed on record, inter alia, invoices, bills, its copyright registration certificate for its mark “TRAIN”, etc. in support of its claim of continuous use of the mark over the years. Respondent stated that since both the parties dealt in the same goods (i.e. rice), there is likelihood of confusion amongst customers about the identity of the goods. Both, the Trademark Registry in India and the Intellectual Property Appellate Board (“IPAB”) refused the registration of KRBL’s mark.

However, both IPAB and the Court noted that the invoices on record had numerous discrepancies and appeared to be forged/ fabricated. The Court observed that the only cogent evidence placed by the Respondents was its copyright registration and that mere copyright registration of their mark is extraneous for the purpose of proving the use of the subject Trade Mark.

As for registration of KRBL’s device mark, the Court noted that since the Respondent only had a right to the word mark “TRAIN” and that the device applied for by KRBL was considerably different from the word mark, it was entitled to be registered. The Court also observed that KRBL’s mark has been in use for almost 22 years without any interruption and there has been no confusion and deception reported by the respondent. It held that KRBL’s application was not hit by provisions of non-registrability under the Trademark laws and the mark was entitled to the benefit of honest and concurrent use and coexist alongside the Respondent’s mark.

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