Analysis of IP issues in cyberspace: A case study of deep linking

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Intellectual property may be defined as creations of the mind, inventions, literary and artistic works and symbols, names and images used in commerce. Intellectual property is divided into two categories:

 Industrial Property includes patents for inventions, trademarks, industrial designs and geographical indications.

 Copyright covers literary works (such as novels, poems and plays), films, music, artistic works (e.g., drawings, paintings, photographs and sculptures) and architectural design. Rights related to copyright include those of performing artists in their performances, producers of phonograms in their recordings, and broadcasters in their radio and television programs.

Introduction

The advent of computers/electronic devices as a basic sources of communication, digital data, digital content, information processing, information storage, physical devices control, multimedia software applications on the internet, applications that run across different countries of the globe, etc., has lead to visualize a new cyber world and hence cyber society. This cyber society functions on a virtual world created by technology as defined under Section 2(i) of Indian Information Technology Act 2000. In general, Intellectual Property Right Laws (IPR) includes copyright, rules on fair use, special rules on copy protection for digital media, etc. The software patents is an area of controversy and in infancy in several countries [21]. Cyber law or Internet law (CL) is a term that internally represents the legal issues related to use of the Internet. CL is readily distinguishable from IPR. CL is not completely evolved as a subject of investigation in the context of software development, use and etc. One can understand that IPR has its application in the domain of CL.

History

The 1967 Stockholm Diplomatic Conference for Revision of the Berne Convention for the Protection of Literary and Artistic Works (the “Berne Convention”) made an attempt to introduce copyright protection for folklore at the international level. As a result, Article 15(4) of the Stockholm (1967) and Paris (1971) Acts of the Berne Convention contains the following provision: “(4)(a) In the case of unpublished works where the identity of the author is unknown, but where there is every ground to presume that he is a national of a country of the Union, it shall be a matter for legislation in that country to designate the competent authority which shall represent the author and shall be entitled to protect and enforce his rights in the countries of the Union.” “(b) Countries of the Union which make such designation under the terms of this provision shall notify the Director General [of WIPO] by means of a written declaration giving full information concerning the authority thus designated.

Under world common law

The Information and Technoloy Act comprises of 94 sections divided in 13 chapters. The chapters cover digital signature, electronic governance, attribution, acknowledgment and dispatch of electronic records, security of electronic records and digital signatures, regulation of certifying authorities, duties of subscribes to digital signature certificate, cyber regulation appellate tribunal, offences and liabilities of network service providers. The act has four schedules that lay down the relative amendments to be made in The Indian Penal Code, Indian Evidence Act, Bankers’ Books Evidence Act and Reserve bank of India Act.1

This Act has three objects, those are

i. To respond and to give effect to the united nations call to all states to give favourable consideration to model law when they enact or revise their laws so as to facilitate harmonization of the laws governing alternatives to paper based methods of communications and storage of information. ii. To provide legal recognition to transactions carried out by means of electronic data interchange and other means of electronic communication, commonly called as e- commerce which involve the use of alternatives to paper based methods of communication and storage of information. iii. To facilitate e-filing of documents with the government agencies so as to promote efficient delivery of government service by means of reliable electronic records.2

Unfortunately this IT Act does not deal with cyber squatting i.e. stealing of domain names from its legal owner, controlling the conduct of cyber cafes; net pornography hosted by websites of foreign origin; taxation of e-commerce transactions; spamming or the practice of sending unsolicited commercial e-mails that amounts to breach of individual’s right to privacy on the net; crimes committed by websites of foreign origin; lack of enforceability of the provisions relating to e-governance, jurisdiction in the cyberspace; stamp duty of e-contracts, cyber stalking, credit card frauds, cyber defamation etc.

5 related famous cases summary

Yahoo! Inc. v. Akash Arora and another, 1999 Arb. L. R. 620 (Delhi High Court) The first case in India with regard to cyber squatting was Yahoo Inc. v. Aakash Arora & Anr., where the defendant launched a website nearly identical to the plaintiff’s renowned website and also provided similar services. Here the court ruled in favour of trademark rights of U.S. based Yahoo. Inc (the Plaintiff) and against the defendant, that had registered itself as YahooIndia.com. The Court observed, “It was an effort to trade on the fame of yahoo’s trademark. A domain name registrant does not obtain any legal right to use that particular domain name simply because he has registered the domain name, he could still be liable for trademark infringement.” Bajaj Auto Limited Vs. TVS Motor Company Limited JT 2009 (12) SC 103 Dispute over Patent for the Use of Twin-Spark Plug Engine Technology – Speedy disposal of Intellectual property rights cases- The Supreme Court of India by this landmark judgment has directed all the courts in India for speedy trial and disposal of intellectual property related cases in the courts in India. In two-year-old dispute involving two companies, which have been locked in a patent dispute over the use of a twin-spark plug engine technology, the Supreme Court observed that suits relating to the matters of patents, trademarks and copyrights are pending for years and years and litigation is mainly fought between the parties about the temporary injunction. The Supreme Court directed that hearing in the intellectual property matters should proceed on day to day basis and the final judgment should be given normally within four months from the date of the filing of the suit. The Supreme Court further directed to all the courts and tribunals in the country to punctually and faithfully carry out the aforesaid orders.3 Novartis v. Union of India [CIVIL APPEAL Nos. 2706-2716 OF 2013 (ARISING OUT OF SLP(C) Nos. 20539-20549 OF 2009]

Rejection of a patent for a Drug which was not ‘inventive’ or had an superior ‘efficacy’- Novartis filled an application to patent one of its drugs called ‘Gleevec’ by covering it under the word invention mentioned in Section 3 of the Patents Act, 1970. The Supreme Court rejected their application after a 7 year long battle by giving the following reasons: Firstly there was no invention of a new drug, as a mere discovery of an existing drug would not amount to invention. Secondly Supreme Court upheld the view that under Indian Patent Act for grant of pharmaceutical patents apart from proving the traditional tests of novelty, inventive step and application, there is a new test of enhanced therapeutic efficacy for claims that cover incremental changes to existing drugs which also Novartis’s drug did not qualify. This became a landmark judgment because the court looked beyond the technicalities and into the fact that the attempt of such companies to ‘evergreen’ their patents and making them inaccessible at nominal rates.4 The Coca-Cola Company Vs. Bisleri International Pvt. Ltd Manu/DE/2698/2009 Infringement: Export: Threats: Jurisdiction – The Delhi High Court held that if the threat of infringement exists, then this court would certainly have jurisdiction to entertain the suit. It was also held that the exporting of goods from a country is to be considered as sale within the country from where the goods are exported and the same amounts to infringement of trade mark. In the present matter, the defendant, by a master agreement, had sold and assigned the trade mark MAAZA including formulation rights, know-how, intellectual property rights, goodwill etc for India only. with respect to a mango fruit drink known as MAAZA.

In 2008, the defendant filed an application for registration of the trade mark MAAZA in Turkey started exporting fruit drink under the trade mark MAAZA. The defendant sent a legal notice repudiating the agreement between the plaintiff and the defendant, leading to the present case. The plaintiff, the Coca Cola Company also claimed permanent injunction and damages for infringement of trade mark and passing off. It was held by the court that the intention to use the trade mark besides direct or indirect use of the trade mark was sufficient to give jurisdiction to the court to decide on the issue. The court finally granted an interim injunction against the defendant (Bisleri) from using the trade mark MAAZA in India as well as for export market, which was held to be infringement of trade mark Clinique Laboratories LLC and Anr. Vs. Gufic Limited and Anr. MANU/DE/0797/2009

Suit for infringement by a registered trade mark owner against a registered trade mark holder: Conditions-The present dispute was between the registered trade mark of the plaintiff as well as defendant. It is interesting to note that before filing the suit the plaintiff i.e. Clinique had filed a cancellation petition before the Registrar of Trade Marks, India, against the defendant for cancellation of the defendant’s trade mark CLINIQ. As per the Section 124(1) (ii), of the Indian Trade Marks Act, 1999 a suit is liable to be stayed till the cancellation petition is finally decided by the competent authority. However, under Section 124(5) of the Act, the court has the power to pass interlocutory order including orders granting interim injunction, keeping of account, appointment of receiver or attachment of any property. In this case, the court held that a suit for infringement of registered trade mark is maintainable against another registered proprietor of identical or similar trade mark.5

It was further held that in such suit, while staying the suit proceedings pending decision on rectification/cancellation petition, the court can pass interim injunction restraining the use of the registered trade mark by the defendant, subject to the condition that the court is prima facie convinced of invalidity of registration of the defendant’s trade mark. In this case the court granted an interim injunction in favour of the plaintiff till the disposal of the cancellation petition by the competent authority.