ACUITY LAW UPDATE: INTELLECTUAL PROPERTY UPDATE FOR JUNE 2013 We have enclosed below our IP update for the month of June 2013 on certain key developments in intellectual property law in India. Hope you find it interesting! The Intellectual Property practice is headed by Aishwarya Nargolkar. If you need any additional information, A. Patents please contact Aishwarya at 1. Merck Sharp And Dohme Corporation and Anr. (Merck) Vs Aprica Pharmaceuticals Private Limited (Aprica) Acuity Law has been awarded as the On 17 June 2013, the Delhi High Court passed an ex parte injunction order, preventing "best newcomer" law firm by IBLJ in Aprica from launching generic versions of Januvia and Janumet and restraining them from the Indian Law Firm Awards, 2012. selling, distributing, advertising, exporting, offering for sale and in any other manner, directly or indirectly, dealing in any product that infringes the registered patent - Sitagliptin and its derivatives. Merck had filed this suit for permanent injunction for restraining Aprica from infringing its registered patent in respect of Sitagliptin and its derivatives salt on the basis that, if Aprica launched its product, irreparable loss and injury would be caused to Merck. The next date in the matter is 13 August 2013. 2. Hindustan Unilever Ltd (Hindustan Unilver) appeal dismissed
The Intellectual Property Appellate Board (IPAB) dismissed the appeal filed by Hindustan Unilever challenging the denial of patent for water-in-oil microemulsions for hair treatment by the Controller of Patents and Designs (Controller). According to the Hindustan Unilever, consumers who oiled their hair pre-wash and post- wash get an unattractive appearance. This invention prevented such condition. However, IPAB rejected the claim of Hindustan Unilever of this hair treatment being an "invention" and upheld the view of the Controller. B. Trademarks
1. Royal Orchid Hotels Ltd (Royal Orchid) Vs Kamat Hotel (India) Ltd. (Kamat Hotel)
The IPAB allowed both the appeals filed by Royal Orchid against the Deputy Registrars decision allowing an opposition filed by Kamat Hotel for use of two trademarks viz. 'Royal Orchid Hotel' and 'Royal Orchid' in Class 42. The IPAB rejected all the oppositions of Kamat Hotel and stated that the Royal Orchid's name had become Royal Orchid Hotels Limited in 1997 pursuant to a resolution dated 1996 while Kamat Hotel claims to be using Orchid only since January 1997 and hence there was no imitation of the name. Also, when the mark was considered in its entirety, IPAB was of the opinion that there was no confusion in the name "Royal Orchid Hotels Private Limited" and "Orchid". 2. Macleods Pharmaceuticals Limited (Macleods) Vs Intas Pharmaceuticals Limited (Intas) & Anr. The Bombay High Court (Court) rejected the plea of Macleods for an injunction against Intas for violation of trademark of a medicine and "passing off". Macleods produces Anti- Thyrox, a medicine brand used to treat thyroid deficiency, and Intas manufacturers Lethyrox, for the same symptoms. Macleods alleged that Intas violated its trade mark and therefore it should be stopped from marketing the product to avoid confusion among the consumers. However, the Court rejected the request stating that (1) the marks are distinct and different; (2) Macleods had not established the ingredients of passing off action; (3) the adoption of the name by Intas appeared to be honest, independent and bona fide; (4) the rival packets placed before the Court also did not make out any case for confusion. The Court then expedited the hearing of the main suit. 3. M/s. Gillette India Limited (Gillette) Vs. M/s. Harbans Lal Malhotra & Sons Pvt. Ltd. (Harbans) and Anr. The IPAB on 21 June 2013 rejected the submissions made by Gillette based on the business ethics of Gillette not being in consonance with the international commercial behaviour. The principal grievance of Gillette was that the mark Champion registered in Harbans' favour is a commonly used English word and so the mark is incapable being registered under the Trademarks Act, 1999 and therefore the impugned marks are liable to be removed from the register. Harbans on the other hand had been using the word 'Champion' since 1964 and were the largest in the market of manufacturing blades. IPAB allowed Harbans to keep the Trademark noting that though it is laudatory expression but can qualify for registration, if and when, it acquires secondary meaning. The contents of this material are for information purposes only and should not be construed as solicitation or advice in any manner whatsoever. No one should act upon the information provided in this material without appropriate professional advice. While Acuity Law strives to ensure that the information contained herein is accurate, timely and reliable, Acuity Law makes no warranties or representations, express or implied, including the warranty of merchantability and fitness for a particular purpose, or assumes any liability or responsibility for the accuracy, completeness, reliability, timeliness or usefulness of the information provided in this material. This information is not intended to create, and receipt of it does not constitute, an advisor-client relationship. You acknowledge and agree that all proprietary rights in the material shall remain the property of Acuity Law. The modification, reproduction, redistribution, disclosure, display and transmission of any information contained herein or deriving commercial use or benefit from the material is strictly prohibited. Acuity Law shall accept no liability for any damages, claims or losses of any nature, arising indirectly or directly, from the use of the data or material or otherwise howsoever arising.
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