From the desk of Dr. Mohan Dewan | Assisted by: Adv. Aboli Kherde, Adv. Sachi Kapoor & Adv. Shubham Borkar
If there is one emotion that the year 2020 will be remembered by, it is the emotion of universal fear. The government authorities, the media, in whatever form and to a certain extent the health and medical system have collectively propagated this emotion. The year 2020 will surely be symbolized by the face mask and the hand sanitizer bottle.
Fear is a necessary human emotion. In fact, it is an emotion exhibited by all living entities. Fear generates what psychologists term as the 'flight or fight' response. The deer runs as fast as possible when it spots a lion. The snake slithers away to the comfort of its hole on spotting a peacock. The dog barks loudly and growls, when it perceives danger. These are a few examples of how living beings respond to fear. In most living entities fear is instinctive. Humans have a unique ability to instil fear in themselves by merely watching or listening to disturbing news. This is a mental conditioning. When a person in authority says: " Do not fear, do not worry..." it triggers an opposite reaction: greater fear, greater worry, greater anxiety! What are these fear triggering words and phrases? Here are some of them: “The policemen are battling with......"; “..... cases were reported today"; "we will fight this!"; " He is a fighter and he will recover!"; " We are winning the fight against...."; " There will be a strict complete lockdown...": There was a spike in cases today, the highest in the past 5 days..."; Their house was sealed and declared a containment zone and all the family members were hauled in an ambulance and placed in quarantine..". " We shall conquer this......". A continuous barrage of messages which asks us to stay safe, maintain social distance, wash and sanitize hands, wear masks at all times purely and simply instils fear.
Physiologists tell us that fear causes immediate physiological changes in the body. They recognize that living under constant fear has serious health consequences. Fear weakens our immune system and can cause cardiovascular damage, gastrointestinal problems and increased heart rate, blood pressure and breathing.
Whereas Neurologists tell us that fear causes the release of stress hormones and can cause damage to certain areas of the brain making it even more difficult to regulate fear. To a person in fear the world looks scary. Fear can cause intense fatigue and even depression. Fear also causes anxiety. Anxiety causes more exhaustion and the body loses its ability to resist and leaves us with the fear of the unknown. Basically asking the questions: “What will happen to me?", "What will become of my business?"; "Will things ever return to normal?"
Yes! a corona virus was released in the environment. May be! It was a mutation of an existing virus and originated in a wild animal / seafood market in the city of Wuhan in China in December 2019. Some doubts have arisen because samples of sewage collected in Barcelona, Spain in March 2019 and in December 2019 in Milan and Turin, in Italy have tested positive for the virus. Yes! The novel corona virus is contagious and yes WHO now tells us it is airborne and therefore infectious. Yes! It has been given the name Covid-19.
The symptoms of the Covid-19 are similar to that of the influenza, what we commonly refer to as the 'flu'. Google tells us that the only difference in symptoms are that in Covid-19 there is a loss of taste and smell. Most cases of Covid-19 result in patients with mild or no symptoms. These patients are called asymptomatic.
Patients have no fear of the flu. It is jokingly said that the flu will resolve itself in 7 days without medication and within 1 week with medication. We have come to accept that we will contract the flu once or twice a year during which we will be required to rest, take some medication to alleviate the fever and treat the 'cold' and 'sore throat'. There are of course complications. Again Google tells us that risk in children is much higher . Yes, there is currently a difference in the fatality rate: 0.1 per cent in the flu and 1.0 percent in the case of C-19. I believe that a significant reason for the higher mortality in C-19 is the fear factor. It has been reported that some who tested positive committed suicide even though they were asymptomatic. This can only be attributed to morbid fear.
Immunologists tell us that what will eventually save the world is "herd immunity". If a critical mass of people get infected and recover, this will weaken the spread and result in people with a stronger immune system. Rather than fear of the virus we must come to terms with it. On the other hand, we need to build the immunity of the general public by providing them immunity boosting food and medicines. This cannot be achieved by fear.
Image Source Mohamed Hassan from Pixabay. We do not claim any copyright in the images. These are used for representational and academic purposes only
- Rajinder Sapru
B/E Aerospace Inc. (“B/E”) was granted 2 patents in the United States of America: US 9073641 (“the 641 patent”) and US 9440742 (“the 742 patent”). These patents are related to space saving technologies for enclosures in aircraft lavatory, closets and galleys. Though the patents were related to space saving modifications, they were not related to any structures contained in walls. The grant of these patents was challenged by C & D Zodiac, Inc. (“Zodiac”) on the grounds of obviousness. `
Figure 1 represents the layout of a typical aircraft lavatory and Figure 2 represents the modifications claimed in the “641” patent. A look at the two figures clearly shows the additional space that becomes available in the changed design. The instant case refers to the spaces below and above the seat as “first recess” and “second recess” labelled as elements 34 and 100 respectively in Figure 2. Claim 1 of the “641” patent claims an aircraft lavatory wherein, upwardly and aftwardly (i.e. towards the wall) inclined seat, back and aft extending seat support. The wall behind the seat is shaped so as to conform to the seat’s inclination leaving space above and below it.
Prior art: In its petition, Zodiac, submitted the prior art as referred in Fig 1 with a flat, forward facing lavatory wall instead of the grooved one. It also submitted the US patent no. 3738497 (“Betts”) discloses shifting the seat with a tilted back rest more towards the wall. Here, behind the seat, there is a closet for a coat and the lower portion of the closet has a storage space along the floor.
Obviousness: The Board found that the ground of obviousness is maintainable. The Board also found that any skilled artisan designing the interior space of an aircraft would have been motivated to modify the flat forward-facing wall so as to make additional space, which is a major objective of any such designer for an aircraft. B/E did not challenge the Board’s finding that Betts teaches the “first recess” limitation but contested the teaching of “second recess”. The Board considered the “second recess” to be obvious since, creating a recess in the wall to receive the seat support was an obvious solution to a known problem. The Board also found that Zodiac established a strong case of obviousness based on admitted prior art of Betts, coupled with common sense and knowledge of a person ordinarily skilled in the art.
Design Drawings: This is the interesting part of the case. Zodiac submitted 3 design drawings to point out that the “enclosures that include a lower recess to receive a seat support” were known in the prior art. B/E moved to exclude these drawings from the case stating that they were neither a part of a patent nor a printed publication and therefore, could not be admitted. The Board denied the motion to exclude and mentioned that 2 of the designs were in public use or sale prior to the critical date of the challenged patents. The Board explained that the designs were considered only for the purpose of identifying knowledge of the skilled persons in the art and for that purpose the drawings need not be a patent printed document.
B/E challenged the decision of the Board in the Court of Appeals for the Federal Circuit, for relying on “common sense” and obviousness for the “second recess” and also for considering the drawings which were not printed documents. The Court affirmed that combining admitted prior art and that of Betts and its application to “second recess” can be considered to be an application of known technology with a predictable outcome. The Court further observed that a person skilled in the art would have applied a variation of the “first recess” and would have seen the benefit of doing so. Combining familiar elements according to known methods is likely to be obvious when it does not yield anything other than predictable results3 .
In KSR Int’l Co. v. Teleflex Inc.,550 U.S. 398, 416 (2007), the Supreme Court opined that common sense is an important factor in determining obviousness. The Court opined that common sense teaches that familiar items may have obvious uses beyond their primary purpose and that the use beyond a primary purpose may be obvious to a person with common sense. The court held that “rules that deny fact finders recourse to common sense” are inconsistent with our case law. However, common sense, common wisdom and common knowledge cannot be used as a wholesale substitute but have to be explained with reasoned analysis and evidentiary support, especially when dealing with a limitation missing from the prior art references specified. The Court opined that the Board has dedicated more than eight pages of reasoned analysis and evidentiary support for the “second recess” including reliance on the expert opinion. The Court also relied upon Perfect Web Techs, Inc. v. InfoUSA, Inc., (Fed. Cir. 2009). The Court found no error in the conclusion of the Board that a person of ordinary skill would have used common sense to incorporate a second recess based on the admitted prior art and Betts combination. The Court also concluded that the obviousness has been established irrespective of the 3 drawings and therefore, there was no need to reach the issues raised by B/E on whether the Board ran afoul by considering design drawings which were not part of a patent or a printed document.
3(KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007)
- Rajinder Sapru
Can a compound term like “Booking.com” be registered as a trade mark?
Booking.com, a company which provides for a travel registration website and web application by the same name, sought trademark registration of “Booking.com”. The trademark registration was refused by USPTO stating that the term was generic and generic terms cannot get registered as trademarks.
Booking.com approached the U.S. District Court for the Eastern District of Virginia for judicial review of the USPTO’s decision. The District Court allowed the trademark registration. USPTO appealed at the Fourth Circuit Court, which upheld the decision of the District Court. The Fourth Circuit held that there is a difference between the words “Booking” and “Booking.com”. The former is a standalone term and generic whereas the latter is not. USPTO argued that clubbing two generic terms “booking” and “.com”, would still yield a generic term. The Court rejected this contention of the USPTO. Lanham Act (also known as the Trademark Act of 1946) states that generic (or non-generic) character of a particular term depends on its meaning to consumers, i.e., do consumers in fact perceive the term as the name of a class or, instead as a term capable of distinguishing among members of the class.
The Court held that, it is necessary to look at what a consumer makes out of a term like “Booking.com” and whether he/ she associates the term with a class of goods/ services. Any compound term with the term “.com” can be considered to be a generic name for a class of goods or services only if the term has that meaning to customers. So, what would the compound term “Booking.com” convey to a consumer? The Court observed that a consumer would not perceive such terms as a class of goods or services since only one entity could occupy a particular internet domain name at a time. Therefore, a term with a “.com” would at best, convey to consumers an association with a particular website and not a class of goods / services. The US Supreme Court affirmed this decision.
Popular pharmaceutical company Dr. Reddy's Laboratories Limited (“Dr. Reddy’s”) approached the Delhi High Court1 seeking permanent injunction against Rlifespan Diagnostics Private Ltd (Rlifespan), a company which was offering diagnostic and pathological services using Dr. Reddy’s registered trademark in various ways. It was also using the mark as a part of its domain name.
Rlifespan accepted the allegations framed against it and submitted that once it received a notice from Dr. Reddy’s, it immediately stopped using the infringing trademarks. Rlifespan also averred that it does not have any offending label in its stock at the moment. Rlifespan stated that the infringement occurred because of its mistake, it agreed to suffer the decree of permanent injunction, monetary damages for taking unfair advantage of Dr. Reddy’s mark to make unjust monetary gains and requested Dr. Reddy to not press other reliefs sought by it.
Dr. Reddy’s was satisfied if the suit of permanent injunction and monetary damages is decreed and did not emphasise on other reliefs that were sought in the plaint. The Court recorded the statement of both the parties and granted a permanent injunction in favor of Dr. Reddy, it also awarded monetary damages to Dr. Reddy’s.
1DR. REDDY'S LABORATORIES LIMITED V. RLIFESPAN DIAGNOSTICS PRIVATE LTD. - CS(COMM) 153/2020 Delhi High Court
Patanjali Ayurved Ltd.’s (“Patanjali”) lost the trademark Coronil, as a Single Judge of the Madras High Court passed an interim order restraining Patanjali from using the trademark Coronil till July 30. Earlier in June, Patanjali had claimed that its drug under the brand Coronil was an indigenous cure for COVID-19. However, the Ministry of AYUSH clarified that Patanjali could sell the drug only as an immunity booster and not as a cure for COVID-19. Patanjali has filed applications for the trademarks “Coronil Vati” and “Coronil Tablet” in Class 5 through its Divya Yog Mandir Trust.
A Chennai based company named Arudra Engineering Private Limited (“Arudra”) owns the trademark Coronil and has been using the same since 1993. Arudra is engaged in manufacturing chemicals and sanitizers for cleaning heavy machinery and containment units and has trademark registrations for ‘‘Coronil-213 SPL'' and 'Coronil- 92B'' since 1993. At the Madras High Court, Arudra submitted that the mark adopted by Patanjali for its drugs is nearly identical to its registered marks and although the products sold by the company are different, the use of nearly identical trademarks would still amount to infringement of its intellectual property rights. It submitted that if Patanjali is permitted to use the mark, it will directly affect Arudra’s reputation and goodwill of over 26 years in both international and domestic markets.
The key takeaway from this case is that in practice, if contending parties are of unequal stature and reputation, as in this case, it is all the more important that a search in other categories or classes also be conducted before adopting a trademark. Because the new mark is to be used by a party that has got much to lose, commercially, if the mark doesn’t get registered, a thorough search is crucial. If the trademark owner is a small entity, chances are that it will act and capitalise on having a prior registration (even if it is for different goods) only because of the difference between the economic statures of the parties and capitalise upon the fact that the other party has higher stakes in the matter and may eventually agree to settle.
Trademark law is very relative in nature, every case has to be adjudicated after considering its peculiar facts and circumstances. While deciding over consumer confusion, minute distinction in marks may not be considered if the products in question are medicines or FMCG products, but the same scrutiny may not apply if the entities are engaged in imparting educational services.
Shri Shakti Schools Private Limited (“Shakti Schools”) is engaged in providing educational services under the name and style 'Chirec Public School' and 'Chirec International School' in Hyderabad. It has been using the word mark 'CHIREC' since 1989. The mark 'CHIREC' is derived from 'Children's Recreation Centre', an institution set up by the promoter of Shakti Schools before the establishment of the schools. It has been using the name Shakti Schools from 2016.
Shakti Schools found that another school was operating under the name Chirec Public School in Madhugiri, Tumkur in Karnataka. Shakti Schools filed a suit seeking injunction and contended that the use of an identical mark by Chirec Public School is causing confusion among the public leading to a false presumption that the Chirec Public School is associated with the Shakti Schools
Chirec Public School in its reply stated that it is engaged in providing education since 2005 in a backward taluka Tumkur District in Madhugiri, Karnataka. It contended that it has honestly adopted the name 'CHIREC' for running schools after a thorough search in the records of the Trade Marks Registry, after ensuring that none had been using the said trademark 'CHIREC' for schools and that it has been concurrently using the mark since 13 years. It is not operating beyond Madhugiri Taluk of Tumkur District in Karnataka State and it only has one English medium school following the Karnataka State Board Examination curriculum, hence there would not be any confusion in the minds of parents. It went on to highlight the differences in the fonts, the color combination used by it in its mark, and that of Shakti Schools’ mark. It also stated that it charges only a nominal fee from its students, hence it is not trying to encash on the reputation of Shakti Schools by adopting a similar name. It submitted that its mark 'CHIREC' is a short form of "Children Education Centre". It stated that consumers here are parents who are well educated and thoroughly go through the advertisements, brochures and curriculum apart from the medium of instruction, etc., before admitting their children to a school.
The Trial Court, inter alia, observed:
• That Shakti School got the mark registered in 2016 whereas Chirec Public School has been using the name 'CHIREC' since 2005.
• That Chirec Public School was using the word 'CHIREC' in blue colour with a logo on both sides, while the mark used by Shakti Schools uses multiple colours, i.e. red, green and blue and the description of the name 'CHIREC' is in a different font and style and the term is used without any logo.
Image Source- www.chirec.ac.in
We do not claim any copyright in the images used. The same has been used only for academic purposes.
• that the parents of the children who would admit their wards into the schools are not illiterates and they would not be carried away by the use of name 'CHIREC', particularly when the curriculum of both schools are different and when the Chirec Public School is only operational in the District of Tumkur in Madhugiri Taluk, a remote place of Karnataka State, while Shakti Schools is running its schools in the city of Hyderabad.
• that Chirec Public School was a Charitable Trust and is charging a minimum fee and the students taking admission belong to the middle class or lower-middle-class families who would not be carried away by the name of the school. While parents who would admit their children at Shakti Schools are likely to be more prosperous as they would have to pay a higher fee and are interested in getting their children enrolled in CBSE or other international syllabi.
• that education is not a product of consumption, such as medicine or food item and a customer would not be misled since the issue relates to an educational institution.
• that Shakti Schools failed to establish prima facie that the adoption of the trademark by Chirec Public School is itself with a dishonest intention.
• that if the temporary injunction is granted, the academic year of the students of Chirec Public School would be jeopardized and Chirec Public School would be prevented from using such logo and it would also have to opt for a different name and obtain various permissions from various authorities to run the school.
Hence at this stage of considering the interim application, it is not possible to come to any conclusion without trial.
Decision by the Telangana High Court
The Court2 concurred with the findings of the trial court and upheld its order. In light of the same, it prima facie appeared to the Court that the use of the trademark 'CHIREC' by the CHIREC Public School is honest and concurrent. Thus, the High Court held that the Trial Court rightly refused to grant any interim relief to Shakti Schools.
2Shri Shakti Schools Private Limited vs M/S. Chirec Public School -Civil Misc Appeal No.160 OF 2020
Most times, we bring to you hidden meanings in trademarks. Designs are carefully crafted to convey a particular thought or idea by brands. However, could it happen that something that was regressive got inadvertently portrayed? Shouldn’t brands be sensitive to the social ideologies and keep themselves updated with the changing scenario? Gone are the days when women were confined to the four walls of the household and found it a privilege to be the second-in-command to their spouses. Also gone are the days when racist, sexist jokes could make good ad campaigns.
In the 1800s, Van Heusen, one of the most premium clothing brands, especially for men, came up with this advertisement:
As regressive and stereotypical it may seem today, it was well accepted in that era, where women were considered confined to households.
After Loreal and Fair & Lovely, Scotch Brite by 3M is the latest brand that came on the radar of the netizens. It started when a user posted a series of pictures of Scotch Brite products featuring a vector image of a woman with a bindi on his LinkedIn handle.
Scotch Brite has the above-described vector image over products like brooms, bathroom wipes, and toilet brushes only, while their lint roller has a man's coat on the product pack. The post went viral and 3M was criticized by netizens for their gender-targeted marketing and for having a sublime stereotype consciousness that household chores are only meant for women.
In response to his post, Atul Mathur Head – Marketing, Consumer Business at 3M India thanked the user for bringing forward this issue and stated that it shall soon move on from the regressive beliefs and promised that consumers will see the logo changed in a few months. A spokesperson from 3M India further said that the new logo would not display a woman, as householders since chores are equally shared by all family members and “we understand the need to make the product packaging gender-neutral."
BSDU Students develop contactless 3 in 1 temperature sensor, automatic sanitizer dispenser, and attendance calculator device.
Students of School of Entrepreneurship Skills at Bhartiya Skill Development University (BSDU) have developed a 3-in-1 COVID-19 safety device that is capable of a. monitoring the human body temperature in a contactless manner, b. capture the attendance and c. automatically dispense hand sanitizer, all at the same time. This invention can be very useful in malls, offices, schools, and other such public places. The device is powered from solar and grid sources of energy. It comprises a body temperature sensing unit, an automated hand sanitizer dispenser, a camera for face recognition, a display, a wireless communication panel, an alarm system, a power supply, and lastly a processing unit to ensure its 3 in 1 utility. A patent application has been applied for this 'Hybrid Automatic Sanitizer Dispensing Device with Human Body has Temperature Detection and Monitoring’ and was published in the Patent Office Journal on June 26, 2020.
Twitter has deleted Donald Trump retweet featuring Linkin Park’s Song
The US President retweeted a campaign video featuring ‘In the End’ of Linkin’ Park. In response to this Linkin’ Park tweeted that it did not and does not endorse Trump and is pursuing a “cease and desist” notice as it had not authorized the use of its song in the video.
Resultantly, Twitter deleted the alleged video and stated that as per its copyright policy, it responds to valid copyright complaints. This is not the first time when bands have complained over unauthorized use of their copyrighted works by Donald Trump, a few days ago The Rolling Stones also complained. Here is our coverage on the same.