India – IP Law And Growing Technology.

The Delhi High Court on 23rd October 2019 directed Facebook Inc. and other social media platforms to take down the defamatory material against Baba Ramdev, globally.  In the case against Facebook Inc., Google Inc., YouTube LLC and Twitter International Company, the plaintiffs pleaded that defamatory material based on a book titled ‘Godman to Tycoon- the Untold Story of Baba Ramdev’ was disseminated by these platforms. The book was banned with effect to 11th August, 2017 by the order of the Delhi High Court in a defamatory suit between Baba Ramdev and the publisher who filed an appeal which is pending before the Court. 

The defendants contended that they were intermediaries and were exempted from the liability under Section 79 of the Information Technology Act, 2000. The defendants exercising due diligence as per the said Section and in the compliance of order of the Court dated 24th January, 2019, in the same matter, took down the defamatory content from the Indian domain. They resisted the global injunction by contesting that an order for global injunction would frustrate the principles of comity of courts and state sovereignty in International law. Since the free speech standard varied in different countries, national courts should restrict their order to geo-blocking of the content. A global injunction order would adversely impact the interests of the defendants exposing them to legal proceedings for censoring content in various countries. The Delhi High Court based its decision on the rationale that the rights of dignity and reputation of an individual under Article 21 of the Constitution of India was of paramount importance and geo-blocking will only result in partial removal of the data as the same would be accessible through various technological means. It further held that the data originating in India is very well covered within the jurisdiction of the Indian courts and therefore, the order for global injunction of such data is not impugned or contrary to the principles of International Law. The Delhi High Court ordered global injunction of the material originating in India; and in so far as the content uploaded from outside India is concerned, the Court directed that access must be blocked in the Indian domain. Facebook has appealed against this order before the Division Bench of the Delhi High Court and the same is pending to be heard on 7th December, 2019.

Grounds for refusing trademark registration to be recorded in writing 

On 16th October 2019, the Delhi High Court held that it was mandatory for the Registrar of Trade Marks to record the grounds for refusal or conditional acceptance of the Trade Mark registration in writing. This decision came out of a petition filed against a non-speaking order passed by the Registrar of Trade Marks on the ground of it being in violation of Section 18(5) of the Trade Marks Act, 1999. The petitioner argued that while the said Section 18(5) mandated the recording of the reasons in writing, Rule 36 of the Trade Marks Rules, 2017, was inconsistent with Section 18(5) as it did not provide for recording of the grounds for refusal or conditional acceptance. Under Rule 36 of the Trade Marks Rules, 2017, it was provided that in case an applicant intended to appeal against the decision of the Registrar of Trade Marks, he would have to apply to the Registrar whereupon the grounds of refusal/ conditional acceptance would be furnished.

The Court held that Section 18(5) of the Trade Marks Act, 1999, prevailed over Rule 36 of the Trade Marks Rules, 2017. An order was passed in favour of the petitioner and the Registrar was asked to furnish the grounds within two weeks of passing of the order. 

Reliance Life Sciences Private Limited v. Genentech Inc. – a litigation battle over the Trastuzumab biosimilars 

In this case, Genentech Inc. and Roche Products Pvt. Ltd. (Respondents) had sought an injunction against Reliance Life Sciences Pvt. Ltd. (Appellant) from launching, selling, marketing and/or distributing the biosimilar drug “TrastuRel” in the domestic market as Trastuzumab. The Respondents had developed the drug, Trastuzumab, and had obtained a patent for the same which lapsed in the year 2013. The Respondents marketed Trastuzumab under the brand names HERCEPTIN, HERCLON and BICELTIS which was used to treat HER2+, a type of breast cancer. The Respondents also prayed for restraining the Appellant from relying on the data developed by the Respondents on Trastuzumab on its package and cartons. Further, the Respondents sought for a declaration that the approvals, with regard to clinical protocol trials, granted by the Drug Controller General of India (DCGI) were invalid as tests conducted were not in compliance with the laws on drugs in India. 

Amendments suggested to the industrial design rules 

On 18th October 2019, the Government of India published draft Design (Amendment) Rules 2019 and Patents (2nd Amendment) Rules, 2019 for seeking objections or suggestions from the persons to be affected by these rules. These amendments aim to introduce the definition of “startup” which shall mean an entity recognized as a startup under the Startup India initiative; and in case of a foreign entity it should fulfill the criteria of turnover and period of incorporation as per the Startup India initiative. In order to facilitate filings by startups and small entities, the amendment also makes a clarification that the startup/ small entity will not have to pay an additional application fee after filing an application for industrial design is case the applicant ceases to be a startup/ small entity after the filing due to an increase in their turnover. The amended rules also suggest a reduction in fees for startups and small entities. 

India ranked among top 15 countries in intellectual property filings as per World Intellectual Property Organization (WIPO) 

As per the World Intellectual Property Indicators 2019 issued by WIPO, India secured the 9th rank with respect to the total (resident and abroad) trademarks filing activity by origin in the year 2018. With respect to patents and industrial designs filing, India secured the 12th and 13th rank respectively. The WIPO analyzed the data of 49 countries for the purpose of publishing this report.