There appears to be some kinda rip off of Disneyland in some province in China.
For snaps, pictures and details - http://www.businessday.co.za/articles/world.aspx?ID=BD4A454667.
are not these in the public domain ???
Tuesday, May 8, 2007
Brazil Joins the Compulsory Licensing Bandwagon !!!
The patented drug Efavirenz (used for the treatment of AIDS) has been compulsorily licensed by the Government of Brazil (http://www.businessday.co.za/articles/world.aspx?ID=BD4A454667).
Merck's response to what it calls "misappropriation" (which it certainly is not - under the laws of Brazil) of its intellectual property, is not yet known.
Merck's response to what it calls "misappropriation" (which it certainly is not - under the laws of Brazil) of its intellectual property, is not yet known.
Monday, May 7, 2007
As the Arbitrators Like It !
The case of Shri Jagdish Purohit v. Mr. Stephen Koeing before Shri Rajiv Singh Chauhan, Arbitrator; (available at http://www.inregistry.in/policies/dispute_resolution/dispute_decisions/business.pdf) makes a most interesting reading.
The dipsute concerns the domain name www.internet.in.
[As a background the .in Domain Name Dispute Resolution Policy is substantially the same as the UDRP]
The complainant argues that he has trade mark rights over the term internet having registered it, in India in respect of tobacco and other allied products.
The arbitrator goes into a long drawn out analysis to reach the conclusion that the term 'internet' is generic and therefore that niether parties have a right to the trade mark - a fair point. From this generally acceptable proposition, our friend Mr. Chauhan seems to reach the conclusion that since domain names are trade marks, neither party has the right to the domain name and so orders that it be siezed (huh?) and retained by the Registry.
The least stated about the judgment - the better. Suffice to say that Mr. Chauhan's opinion and the order is bunkum !!
The judgment seems to reflect the utter shambles within which the IDRP is built - the arbitrators being proficient in niether the law nor the technology. Perhaps, till a method for the efficient running of the dispute resolution mechanism is put in place - a special court may be more equipped to deal with such matters.
Sunday, May 6, 2007
The Delhi High Court & the IP Owner Waltz: The Curious Case of the 'Sugar Free' Trade Mark
A descriptive trade mark may be entitled to protection if it has assumed a secondary meaning which identifies it with a particular product or as being from a particular source.
- Godfrey Philips Indi Ltd. Vs. Girnar Food and Beverages (P) Ltd., 2005 (30) PTC 1
The Delhi High Court has established a reputation for being notoriously 'pro-ip' and for relegating precedent's on the grant of interim injunctions to the dustbin of history's forgotten ideas. Even within this milieu, the interim order in Zydus Cadilla v. Gujarat Cooperative Milk Marketing Federation (IA No. 3851/2007) is shocking. The Court has relied on the above quoted statement of the Supreme Court of India in Godfrey Philips, to determine that the plaintiff is entitled to an injunction against the defendant's use of the words "Sugar Free" on its diet chocolates.
While an attempt to comprehensively critique the order may well result in a textbook on trade mark law, here are some thoughts:
1. The trade mark "Sugar Free" is inherently incapable of being an 'indication of origin" in respect of artificial sweeteners and thereby cannot be a trade mark. Further it is (a) it is generic and (b) it is descriptive.
2. Even if one were to assume that the term "Sugar Free", by virtue of 'extensive and exclusive' use, is entitled to protection as a trade mark in respect of artificial sweeteners, the band within which such protection exists is narrow. It does not and cannot be extended to any other 'diet' products.
These are reasons rooted in trade mark law, and perhaps it can be determined by a Court only after an 'exhaustive' study of the law and of facts. What is worrying, as a matter of process, is the 'eagerness' to grant ad exparte interim injunctions - with nay regard to facts, marks and law. A jurisprudence resulting in the ipso facto grant of an interim injunction - exparte, on the payment of court fees - in all matters of IP - appears to be the shameful result of an intense and concentrated lobbying effort on the part of many companies and the lack of a mature legal market.
Till the same is effectively countered or a mature market emerges, "Sugar Free" may not be safely used on diet chocolates, diet soft drinks or even in respect of blogs - lest the Plaintiff apprehend irreparable damage.
Disclaimer: This blog is not SUGAR FREE.
- Godfrey Philips Indi Ltd. Vs. Girnar Food and Beverages (P) Ltd., 2005 (30) PTC 1
The Delhi High Court has established a reputation for being notoriously 'pro-ip' and for relegating precedent's on the grant of interim injunctions to the dustbin of history's forgotten ideas. Even within this milieu, the interim order in Zydus Cadilla v. Gujarat Cooperative Milk Marketing Federation (IA No. 3851/2007) is shocking. The Court has relied on the above quoted statement of the Supreme Court of India in Godfrey Philips, to determine that the plaintiff is entitled to an injunction against the defendant's use of the words "Sugar Free" on its diet chocolates.
While an attempt to comprehensively critique the order may well result in a textbook on trade mark law, here are some thoughts:
1. The trade mark "Sugar Free" is inherently incapable of being an 'indication of origin" in respect of artificial sweeteners and thereby cannot be a trade mark. Further it is (a) it is generic and (b) it is descriptive.
2. Even if one were to assume that the term "Sugar Free", by virtue of 'extensive and exclusive' use, is entitled to protection as a trade mark in respect of artificial sweeteners, the band within which such protection exists is narrow. It does not and cannot be extended to any other 'diet' products.
These are reasons rooted in trade mark law, and perhaps it can be determined by a Court only after an 'exhaustive' study of the law and of facts. What is worrying, as a matter of process, is the 'eagerness' to grant ad exparte interim injunctions - with nay regard to facts, marks and law. A jurisprudence resulting in the ipso facto grant of an interim injunction - exparte, on the payment of court fees - in all matters of IP - appears to be the shameful result of an intense and concentrated lobbying effort on the part of many companies and the lack of a mature legal market.
Till the same is effectively countered or a mature market emerges, "Sugar Free" may not be safely used on diet chocolates, diet soft drinks or even in respect of blogs - lest the Plaintiff apprehend irreparable damage.
Disclaimer: This blog is not SUGAR FREE.
Compulsory Licenses & Thailand: Lessons for the Global Intellectual Property Regime
The Thai Government has issued a compulsory license for two patented drugs - Kaletra & Efavirenz; on accounted of a purported public health emergency. While the sovereign right to issue compulsory licenses on public health grounds remains undisputed, the present crisis reminds one of the threat of an uncompromising expansion of the term 'public health emergency' - resulting in rampant compulsory licensing of patented drugs. (I do not, in any way, assume that the present steps by the Thai Government are unwarranted!)
This could undermine the innovation-profit guarantee that the international intellectual property regime promises and could lead to increasing the external cost of research into critical drugs.
In response to the Government actions, one of the pharmaceutical companies whose patented product was compulsorily licensed withdrew applications to sell new drugs in Thailand.
A pharma war appears to be brewing . . .
A voluntary compulsory licensing addendum to the TRIPS Agreement may well be the cure for this problem, restraining not just the sovereign from unilateral acts but robbing a corporation from any sort of social sanction for any retaliation to the grant of compulsory licenses.
This could undermine the innovation-profit guarantee that the international intellectual property regime promises and could lead to increasing the external cost of research into critical drugs.
In response to the Government actions, one of the pharmaceutical companies whose patented product was compulsorily licensed withdrew applications to sell new drugs in Thailand.
A pharma war appears to be brewing . . .
A voluntary compulsory licensing addendum to the TRIPS Agreement may well be the cure for this problem, restraining not just the sovereign from unilateral acts but robbing a corporation from any sort of social sanction for any retaliation to the grant of compulsory licenses.
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