Maggi Unsafe only for Indians?

After the Indian Maggi fiasco, countries which import Maggi Noodles from Nestlé India decided to run precautionary tests. According to Nestlé’s website, Nestlé India is currently exporting the masala variant of Maggi to various countries including Canada, UK, Singapore, Kenya and to third parties in the US, Australia and New Zealand.

(The previous reports on the same issue can be viewed here and here.)

It’s rather curious to note that the findings of all these foreign Food Standard Agencies have been in favour of Nestlé. According to the results (discussed below) the lead and MSG content in the noodles are within their domestic permissible limits.

1. Canada - The Canadian Food Inspection Agency (CFIA) release its Advisory to the consumers on July 2, 2015 stating “The CFIA's food safety investigation did not find any health risk associated with the consumption of Maggi brand noodle products sold in Canada.”
2. The UK – Food Standards Agency (FSA) has confirmed that results from testing samples of Maggi noodles in the UK have all found that levels of lead in the product is well within European Union (EU) permissible levels and would not be a concern to consumers, through its News Release dated 1 July 2015. The Advisory can be viewed here.
3. Vietnam – The Vietnam Food Administration (VFA) has announced that tests on samples of Maggi noodles imported from third party distributors in India did not detect lead.
4. Australia and New Zealand – Testing by the National Measurement Institute in Australia has confirmed that Maggi noodles manufactured in India and imported by Australia are completely safe to eat. Testing showed that levels of lead were well within the acceptable limits set by the regulator, Food Standards Australia and New Zealand.
5. Singapore – Tests by Singapore’s Agri-Food and Veterinary Authority (AVA) have confirmed that Maggi noodles available in Singapore, including those produced in India, meet Singapore’s food safety standards and do not pose food safety risks to consumers. 

ANDA to Jubilant Life Sciences

On June 23, 2015, Jubilant Life Sciences Ltd. received Abbreviated New Drug Application (ANDA) final approval from the US Food and Drug Administration (US FDA) for Levofloxacin Tablets, 250mg and 500mg. Now Jubilant may manufacture and market the generic drug to the American Public.

Jubilant Life Sciences is an integrated global Pharmaceutical and Life Sciences Company engaged in manufacture and supply of APIs, Solid Dosage Formulations, Specialty Pharmaceuticals and Life Science Ingredients.

The drug Levofloxacin is the generic version of Levaquin Tablets® (of Ortho-McNeil), which is used for the treatment of adults with infections such as pneumonia, bacterial sinusitis, chronic bronchitis, skin and skin structure infections, chronic bacterial prostatitis, urinary tract infections and inhalational anthrax.

Jubilant Life Sciences has a total of 806 filings for formulations as on March 31, 2015, out of which 368 have been approved in various regions globally. This includes 72 ANDAs filed in the US, of which 38 have been approved and 46 Dossier filings in Europe.

Source: http://www.jubl.com/media-press-details.aspx?mpgid=73&pgid=74&pressid=252

Digital India Week

Prime Minister Narendra Modi’s pet project Digital India is all set to be launched on July 1, 2015. The week-long project will be held in Delhi at Indira Gandhi Indoor Stadium and is expected to witness the release of at least one major e-governance project every day. It is believed that the event will attract an audience of over 10,000 and approximately 400 top CEOs have been invited including corporate glitteraties like Tata Group chairman Cyrus Mistry, Reliance Industries chairman Mukesh Ambani, Wipro chairman Azim Premji, Bharti Group chairman Sunil Mittal and Adani Group chairman Gautam Adani.

Source: https://mygov.in/

The highlights of the event are expected to be the Digital Lockers initiative which is designed to help the common citizens store important documents like PAN cards, passports, mark sheets and degree certificates; e-basta, a platform to provide study material for students; e-hospital portal, to facilitate citizens the facility to make appointments with the doctors; eSign facility, for online digital signature service.

Digital India aims to build infrastructure and provide the internet as a utility to every citizen. It promises to improve service delivery by making services available online. Digital India seeks to enable people to access the internet by building digital literacy. Further, BSNL targets to provide Wi-Fi hotspots in 2500 cities.

Launch of IP Toolkit for Police Officials

June 26, 2014

Ahmedabad

S.S. Rana & Co. in collaboration with Federation of Indian Chambers of Commerce and Industry (FICCI) launched an Intellectual Property Tool Kit for Police Officials. The event took place in Ahmedabad and saw the presence of various legal luminaries and police officials from India. The programme commenced with a theme address by Mr. Jatin Trivedi, Chairperson, Legal Sub Committee, FICCI Gujarat State Council and Special address by Mr. R C Mehta, Deputy Superintendent of Police, Assistant Director, Gujarat Police Academy and Mr. J B Gadhvi, Police Inspector, Gujarat Police Academy.

Ms. Ritika Mogha, Associate Advocate of S.S. Rana & Co. also participated in the event and conducted a Workshop on the IP Tool Kit discussing the specifics of the IP Tool Kit, highlighting the specific challenges faced by Indian Police in respect of counterfeiting and piracy, the relevant provisions of law, landmark Judgments and methodologies developed to identify counterfeit products and handling copyright infringement issues.

The IP Tool Kit is broadly divided into four parts.

• Understanding Counterfeiting and Piracy
• Methodologies to distinguish between original and fake
• Current Laws applicable on Counterfeiting and Piracy, Penalties and Remedies thereof alongwith Landmark Judgments
• Checklist for Police Officials 

The initiative taken by FICCI is a welcome move and the IP Tool Kit for Police officials has been prepared by S.S. Rana & Co. to provide a ready reckoner and practical guide for Police Officials in IP enforcement.

The details of the event can be accessed at http://www.ficci.com/past-events-page.asp?evid=22449 

New EU Law, A Midsummer Nightmare?

On every European vacation, tourists can never get enough photographs of the Eiffel Tower or the London eye. But if the new European Union (hereinafter referred to as EU) law is passed, the tourists will be left gaping.

The EU Press Release dated June 16, 2015 titled EU Copyright Reforms must balance Rightholder’s and Users’ Interests, says MEPs stated “On the “freedom of panorama” principle, such as the right to create and share images and photographs of public buildings, the text cautions that the commercial use of such reproductions should require authorization from the rightholder.”

Freedom of Panorama

Freedom of Panorama is a provision in the copyright laws which permits taking photographs, videos and creating other images such as paintings of buildings, sculptures and other work of art, permanently located in a public place, without infringing any copyright that may otherwise subsist in such works, and to publish such images.

The EU countries are divided on the recognition of freedom of panorama. While countries like UK, Ireland, Germany, Poland, Sweden and Spain enjoy freedom of panorama, other countries, like Italy, France, Greece and Belgium do not recognize this freedom which means that one has to obtain permission from the copyright holder before publishing or posting images of buildings, sculptures and other work of art in which a copyright subsists. However, certain countries like Norway and Finland, only allow this freedom for images of buildings and no other works like sculptures. While others, including the Baltic States, Romania and Bulgaria, only permit the use of pictures for noncommercial purposes.

The Issue

Draft Report

This issue stemed from a proposal by German Pirate Party, Member of European Parliament (MEP) Julia Reda. She submitted a report suggesting that “Freedom of Panorama” standards should be unified throughout the EU.

The Draft Report presented by her mentioned that copyright law can be practical and fair if the depiction of public buildings and sculptures is exempt from copyright protection. The extremely diverging implementation of the “freedom of panorama” in different Member States shows that there needs to be a pan-European, broadly defined users’ right to display and communicate works that are located permanently in public places.

Amendment

However, the above proposal was amended by the Legal Affairs Committee of the EU Parliament to read as follows:

Amendment 421, adopted in committee with the votes of European People’s Party, Socialists & Cavada:

16. Considers that the commercial use of photographs, video footage or other images of works which are permanently located in physical public places should always be subject to prior authorisation from the authors or any proxy acting for them;

Effect of this Change

Theoretically, this new law only has implications for commercial use of photographs, such as in advertisements, movies etc.

However, it could become a problem for private use as well when these photographs are uploaded on social networking sites such as Facebook, or other website that reserves the right to use uploaders’ images (most networking sites contain such terms which permit them to obtain an IP license for the content uploaded by its users. This subject has been covered in our previous newsletter titled “Unwittingly Licensing IP on Social Media?” and is available here).

Further, the law will only affect those cultural landmarks that are still under the purview of copyright protection, that is, the work is new enough to have a living copyright holder or a proxy.

But there are other complications associated with this. For example, the Eiffel Tower: the building is not copyrighted, and one may click it to the heart’s content during the day. But at night, it is illuminated. The lighting system is considerably modern and under copyright, and so one may get into trouble for posting photographs of it.

Conclusion

In reference to this law, a movement has been initiated by way of a petition through change.org by one Nico Trinkhaus. In the said petition, Trinkhaus has pointed out that the true objective of the Draft Report presented by Julia Reda has been lost and said that “Instead of bringing the Freedom of Panorama to the few countries that don’t know such law yet, it would take it away from all those who do.” He has called on the members of the European Parliament to not limit the Freedom of Panorama in any way and instead to bring the Freedom of Panorama to all member states of the EU so that the European Citizens can be assured to act within the law when taking and publishing photographs from public buildings anywhere in the European Union.

The EU Parliament is set to vote on this law on July 9, 2015.

References:

1. Draft Report on the Implementation of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the Harmonisation of certain aspects of Copyright and related rights in the Information Society, (2014/2256(INI)); Committee on Legal Affairs; Julia Reda.
2. Amendments 281 – 556 on Draft Report on the Implementation of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the Harmonisation of certain aspects of Copyright and related rights in the Information Society, (2014/2256(INI)); Committee on Legal Affairs; Julia Reda.
3. EU Press Release - EU Copyright Reform must Balance Rightholders’ and Users’ Interests, say MEPs dated June 16, 2015.
4. https://juliareda.eu/2015/06/fop-under-threat/
5. https://www.change.org/p/european-parliament-save-the-freedom-of-photography
6. http://rt.com/news/269398-eu-panorama-freedom-ban/

ZARA to be held Well-Known in India

Recently, the Delhi High Court in the case of Industria De Diseno Textile Sa v. Oriental Cuisines Pvt. Ltd. And Ors., once again recognized the extraordinary protection accorded to well-known trademarks in India and protected the International clothing brand ZARA against the Defendant’s use of ZARA TAPAS BAR in respect of hotel and hospitality services.

                 

Brief Facts

1. Plaintiff, an internationally reputed company engaged in the manufacture, design, sale and distribution of fashion and related lifestyle products in various classes of International Classification of Goods and Services. The Plaintiff secured trademark registration for ZARA in class 25 and opened its first store in India in 2010;
2. The Defendant was founded in the year 1994 and claims to be a pioneer in hotel and hospitality services in India. The Defendant uses the name ZARA TAPAS BAR for its restaurant located in Chennai;
3. In 2005, the Plaintiff came across Defendant’s trademark applications for ZARA TAPAS BAR and filed opposition against the same which is pending before the Trade Mark Registry. At the end of 2012 and beginning of 2013, the Plaintiff came across other trademark applications as well filed by Defendant for registration of ZARA TAPAS BAR. In view thereof, the Plaintiff had filed opposition against all the trademark applications comprising the expression ZARA filed by Defendant;
4. That in February, 2011, the Plaintiff received a letter from Defendant, proposing settlement and co-existence of the marks ZARA and ZARA TAPAS BAR, which was refused by the Plaintiff as its terms were deemed to be unacceptable;
5. It may be relevant to state here that by an ex-parte ad interim order dated July 29, 2013, the Defendants were restrained from using the mark ZARA as a trademark, trade name, corporate name, domain name or in any other manner whatsoever. However, subsequently, on an application by the Defendants, the injunction order was modified and the Defendants were permitted to use the composite trademark ZARA TAPAS BAR only till further orders.

Contentions forwarded by the Plaintiff

1. That they coined, conceived and adopted ZARA as its trademark in 1975 and that the domain name zara.com was registered by the Plaintiff on May 29, 1997 and the same has since been in continuous use by the Plaintiff;
2. That its mark ZARA is one of the top 50 brands among 100 most valued trademarks in the world with brand value exceeding $9.4 billion and therefore ZARA can be classified as a “well known trademark” under section 2(1)(zg) of the Trade Marks Act, 1999;
3. That by usage of “ZARA” since 1986-87 and opening of commercial outlets in 2010, it has acquired tremendous reputation in India;
4. That the Defendant is using the trademark ZARA with generic extensions TAPAS BAR with the aim to take advantage of the goodwill acquired by the Plaintiff internationally;
5. That such actions of Defendant can be deemed as tarnishing Plaintiff’s mark, and constitutes infringement and passing off or in any manner which would be detrimental to the mark’s online presence and distinctive character and repute;
6. That Defendant’s use of the mark ZARA in advertising is deceptively similar to the Plaintiff’s mark;
7. That the adoption of the mark by the Defendant is dishonest and fraudulent, and has been carried out by the Defendant to infringe the Plaintiff’s registered mark and to make people believe that the goods and services offered by the Defendant somehow have connections with the Plaintiff.

Contentions forwarded by the Defendant

1. That they are not using the Plaintiff’s mark per se, and are merely using the mark “ZARA TAPAS BAR” or “ZARA, the Tapas Bar and Restaurant” in relation to goods and services different from those of the Plaintiff, hence no similarity between the marks can be claimed;
2. That their adoption of the mark ZARA was honest and not fraudulent as the said mark is an Italian, Portuguese and Spanish variation of the English, French and German name Sarah and that ZARA is a commonly used dictionary word in various languages especially Arabic, Urdu, Hebrew and Hindi to name a few;
3. That the mark ZARA has been used by many entities and has, therefore, become publici juris;
4. That the Plaintiff chose to wait for 8½ years to file the instant suit. On account of long delay, there is acquiescence on the part of the Plaintiff and shall be disentitled to the relief of ad interim injunction;
5. That since the Defendants have prima facie established opening of Tapas Bar and Restaurant with the name of ZARA TAPAS BAR in the year 2003, Plaintiff’s ZARA’s reputation and goodwill on the date of filing of the suit is irrelevant and its trans-border reputation as on the date of adoption of the name ZARA TAPAS BAR by the Defendants in the year 2003 will be required to be proved by Plaintiff;

Observations and Judgment of the Court

1. That Defendants have used the terms TAPAS BAR or TAPAS BAR AND RESTAURANT or TAPAS, the Bar and Restaurant alongwith the impugned term ZARA and the word ZARA is almost ten times bigger than the other words used in the advertisement/screenshots as displayed. In several Defendant’s advertisements, the words BAR and RESTAURANT have not at all been used with the word ZARA and the word ZARA per se has been used. Thus, there is no manner of doubt that there is deceptive similarity between the mark ZARA of the Plaintiff and the mark ZARA TAPAS BAR, coupled with the way it is being used by the Defendants;
2. That the word ZARA is neither generic nor descriptive nor a dictionary word (as far as Spanish is concerned). The Defendants have not given any plausible explanation for adoption of the mark ZARA. Thus, in all probability, the mark ZARA TAPAS BAR was adopted by the Defendants from the mark ZARA of the Plaintiff. Moreover, Plaintiff’s stores by this name were already opened in over 44 countries. Thus, it cannot be said to be an honest adoption entitling Defendant to its concurrent user. The Court further observed that if the Defendants did not want to ride on the Plaintiff’s reputation, they would have not used the word ZARA prominently in the words ZARA TAPAS BAR or ZARA, the Bar and Restaurant;
3. That the Defendants have failed to show that the mark ZARA is used by a large number of persons, yet even if it is used by any other person, it will not disentitle the Plaintiff to seek relief against the Defendants;
4. That both the parties were in correspondence for amicable resolution of the dispute with regard to use of the name ZARA since at least February, 2011. In the past the Court had held once the Plaintiff had filed opposition to the Defendants’s application for registration, this delay of three years will neither amount to acquiescence nor this delay will disentitle the Plaintiff to the relief of ad interim injunction if it is able to make out a case on merits.
5. The Court observed that a party seeking ex- parte ad interim injunction is expected to make full disclosure but when the matter is heard on merits, both the parties are before the Court and the mis-statement of some facts unless it is mala fide will not disentitle the Plaintiff to the relief of injunction and that the Plaintiff’s statement that it came to know about the Defendants’s activities sometime in the year 2011 cannot be said to be a statement to non-suit the Plaintiff;
6. With regards to trans-border reputation of the Plaintiff, the Court relied on the record of documents submitted by Plaintiff evidencing ZARA’s reputation and trans-border reputation. The Court while assessing the Plaintiff’s mark made reference to the case of N.R. Dongre & Ors. v. Whirlpool Corp. & Anr., AIR 1995 Delhi 300, wherein the Court held that that awareness of a trademark in respect of goods of a trader is not necessarily restricted only to the people of the country where such goods are freely available but the knowledge and awareness reaches even shores of those countries where the goods are not available. In view of the said obiter dicta, the Court opined that although there was no ZARA store in India prior to 2010 but the mark ZARA was registered in Class 25 since 1993 and the Plaintiff has placed on record a number of documents to show that it was getting the fabrication done from various exporters in India;

In view of the aforesaid facts and circumstances, the Court was satisfied that the Plaintiff would suffer irreparable loss and injury if the Defendants were permitted to carry on their business under the name ZARA TAPAS BAR or ZARA, the Tapas Bar and Restaurant even in relation to the hotel and hospitality business.

Conclusion

The case at hand, brings in light several issues relating to protection of well-known trademark in India. The Court in the present case has protected the Plaintiff’s trademark ZARA in respect of clothing against the Defendant’s usage of the mark ZARA in respect of hotel and restaurant services.

Moreover, the Court while examining the trans-border reputation of the Plaintiff’s mark confined itself to the examination documents (evidencing Plaintiff’s reputation) which were dated prior to the year 2003 i.e. the year in which the Defendant started using the impugned mark in India. However, irrespective of having any physical store in India in 2003, the Plaintiff’s mark in view of trans-border reputation was accorded extraordinary protection.

Psycoremedies Ltd. Wins ‘SYZOPIN’ Battle Against Sun Pharma

In a recent trademark feud between Sun Pharma Laboratories Ltd. (hereinafter the Plaintiff) and Pcycoremedies Ltd. (hereinafter the Defendant), the Plaintiff sought to restrain the Defendant from using the trademark SYZOPIN which was nearly identical to the Plaintiff’s registered trademark SIZOPIN with respect to medicinal preparations for the treatment of depression and schizophrenia. The Plaintiff approached the Madras High Court for grant of injunctive relief against alleged infringement.

Facts of the case:

1. The Plaintiff is the registered proprietor and prior user of the mark SIZOPIN which it has been using since 1995 for marketing of medicinal and pharmaceutical preparations under class 5.
2.  The Plaintiff encountered the Defendant’s medicinal preparation bearing an identical mark SYZOPIN, which was visually, structurally and phonetically identical to the Plaintiff’ mark SIZOPIN, and issued a legal notice to the Defendant dated July 11, 2014 calling upon them to cease and desist from using the mark SIZOPIN in relation to their medicines.
3. The Defendant refused to comply with the Plaintiff’s requisitions and instead, claimed that the Plaintiff’s mark was generic in nature and applied for statutory protection of their own mark SYZOPIN by way of registration of the mark. Further, the Defendant also applied for rectification of the Plaintiff’s registered trademark SIZOPIN.

Aggrieved by the aforesaid, the Plaintiff filed a suit for permanent injunction before the Madras High Court.

Plaintiff’s Contentions

1. The Plaintiff had been using the mark SIZOPIN extensively and continuously since 1995 whereas the Defendant had started using the mark SYZOPIN much later in 2002. The Plaintiff, apart from being the registered proprietor of the mark SIZOPIN, had also earned tremendous goodwill garnered through undisputed prior adoption and long and continuous use of the mark. The Plaintiff’s preparations bearing the mark SIZOPIN were well-reputed and well-established in the market long before the Defendant adopted the deceptively similar mark, SYZOPIN.
2. The Defendant’s mark SYZOPIN was almost identical with the Plaintiff’s registered trademark SIZOPIN and was phonetically, structurally and ocularly identical to the registered trademark. The Defendant had deliberately changed the letter ‘I’ with another phonetically identical letter ‘Y’ while copying Plaintiff’s registered trademark. The change introduced by the Defendant was trivial and did not in any manner distinguish the marks of the Plaintiff and the Defendant.
3. The Defendant had deliberately applied for registration of the mark with the sole intent to subvert the rights of the Plaintiff. This reflected their mala fide intention to create a false impression in the minds of the public that their products also emanated from the Plaintiff’s illustrious group of companies and thereby ride on the goodwill and reputation of the Plaintiff.

In view thereof, the Plaintiff sought the grant of permanent injunction restraining the Defendants from using the Plaintiff’s registered trademark SIZOPIN with respect to their medicinal products along with liquidated damages, delivery-up of goods, account of profits and cost of proceedings.

An interim injunction was granted in favour of the Plaintiff pending the disposal of the suit.

Defendant’s Contentions

The Counsel for the Defendant filed an application seeking to vacate the interim order of injunction granted by the court. It was submitted on behalf of the Defendant that:

1. The Defendant had coined the name SYZOPIN honestly from their trade name and ingredient. The Defendant’s predecessor company (Psyco Remedies) had adopted the use of the mark SYZOPIN in the year 2002 for a medicinal products for the treatment of psychiatric disorders.
2. It was also contended that the syllable SIZO was not uncommon in the pharma trade for products relating to psychiatric disorders. It was argued that numerous marks were already registered and pending registration, with the prefix SIZO.
3. The Defendants also pointed out that there were lucid packaging dissimilarities between the two goods which ruled out the possibility of any confusion and deceptive similarity.
4. Further, it was submitted that the products in question are used to treat Schizophrenia which is a serious ailment and hence are not to be treated like any other pharmaceutical products like paracetamol. In the instant case, the products could be purchased without a prescription and as such there would not be any confusion in identifying the two marks.

Laches and Acquiescence in filing of Suit by Plaintiff

The major setback in the Plaintiff’s case was a delay of almost 12 years in filing of the suit for injunction against the Defendant’s use of their mark SYZOPIN. It was submitted on behalf of the Defendant that the trademark SYZOPIN has been used openly, continuously and without any interruption whatsoever by them since the year 2002. In evidence, sale invoices from the year 2002 were produced by the Defendant. Further, it was argued that the Plaintiff had known or at least ought to have known about the Defendant. In this regard the counsel furnished several medical journals from the year 2008 and showed that the drugs of the Plaintiff and the Defendant featured together consistently. Having allowed the Defendant to use the mark SYZOPIN for the past 12 years, now the Plaintiff is estopped from restraining the Defendant from using the mark SYZOPIN.

In their defense, the Plaintiff submitted that the business of the Defendant did not have any substantial presence in the market until about the time of initiation of proceedings and hence the Plaintiff had no occasion or opportunity to know about the Defendant’s mark until recently. Therefore, the submission made by the Defendant on the ground of delay and acquiescence could not be accepted.

Observation and Decision of the Madras High Court

• The Court observed that there was no dispute nor any doubt that both marks were identical and were being used with respect to the similar products, and hence it was unnecessary to delve into the submissions made by the Plaintiff.
• However, while addressing the question of the delay in filing of the suit for injunction the Court observed that both trademarks featured together in medical journals since 2008, therefore the Plaintiff ought to have known about the existence of the Defendant’s mark since around that time. The Plaintiff’s argument that the business of the Defendant did not have any substantial presence in the market until about the time of initiation of proceedings thus the Plaintiff had no occasion to know about the Defendant’s mark was a weak one.
• Thus, according to the Court, prima facie the Plaintiff had the knowledge about the Defendant’s mark and that the case of the Plaintiff suffered from not mere delay, but also laches coupled with acquiescence.
• The Defendant had been using the mark SYZOPIN for the past 12 years and the restraint from using the said mark would definitely affect their business adversely. Whereas, the Plaintiff who had allowed the Defendant to use the mark SYZOPIN all this while would not suffer any loss if the Defendant was allowed to use the mark.

The Court found the balance of convenience in favor of the Defendant and the held that the Plaintiff was not entitled to the continuation of the interim injunctive relief.  

The Honorable Court’s reasoning in the above ruling upholds the maxim of “Vigilantibus Et Non Dormientibus Jura Subveniunt” or “the law assists those who are vigilant with their rights, not those that sleep thereupon”.