Déjà vu for Akhtar – nightmare before Barasat Courts plays out once again – with a different ending?

The infamous dispute between music labels and authors/composers before the Civil Judge at Barasat, which we had blogged about over here and here, has reignited once again. 

I do not have access to most of the information in this case but from I understand, Javed Akhtar filed a complaint on 9th of August, 2012 with the Registrar of Copyrights regarding the state of affairs at IPRS. Thereafter the Registrar of Copyrights issued a show-cause notice to IPRS and I’m speculating that he must have directed IPRS to adhere to the newly enacted mandatory royalty sharing provisions of the Copyright Act, 1957. 

Thereafter, Aasha Audio, a music label based out of Bengal, appears to have filed a declaratory suit before the Civil Judge at Barasat, naming Akhtar and probably IPRS as 2 amongst 8 defendants. Aasha Audio was also the first litigant in the series of litigation in 2004 involving IPRS and Akhtar. I’m not sure of the remedies Aasha Audio has asked for in its lawsuit. It is most likely that Aasha Audio is challenging the show-cause notice issued to IPRS. It appears that the present Civil Judge at Barasat, unlike her predecessor was in no mood to indulge the music labels and refuse to grant Aasha Audio an interim injunction through an order dated 10th September, 2012. 

The matter was subsequently appealed to the District Judge. 

In an order dated 26th September, 2012 the District Judge indulged Asha Audio with a limited ad-interim injunction subject to an undertaking that royalty payments would be made to the authors. The exact target of the injunction is not really explained in the order. This order can be accessed over here. 

Javed Akhtar then filed a revision petition against this order before the Calcutta High Court, which in an order on the 9th of January, 2013. Sometime before the revision petition was filed, the Registrar of Copyrights was made party to the dispute because he had issued a show-cause notice. The Calcutta High Court in an order dated 9th January, 2013 declined to interfere with the District Judge’s order but it did order the District Judge to hear Akhtar and the other defendants before extending the interim injunction any further and also confirmed the requirement for royalty payments to be made on the basis of the amended Copyright Act. This order can be accessed over here. 

According to sources familiar with the matter, on the 14th of January, 2013 the District Judge heard both sides and reportedly extended the initial interim injunction till 13th February, 2013. Apparently the District Judge was concerned that irreparable injury would be caused to the plaintiff who had filed the suit if the order was not extended. I do not have a true copy of this order. 

Most of the above dispute is playing out in the same manner as the earlier litigation at Barasat. 

Will it end differently?

Read More

Faking it! Indian Companies using IKEA’s trademarks

 Though India’s foreign investment agency approved IKEA’s entry into India, new ‘trademarked’ obstacles await IKEA. As business standard reports, IKEA is now facing trademark related challenges. It was reported that three registered Indian companies are currently using IKEA’s brand name. The three companies mentioned in the report are – 1. IKEA Home Décor Private Limited (which, as the report states, has a registered trademark), 2. IKEA Constructions Private Limited and 3. IKEA Furniture Private Limited. Of the three, as reported, the Registrar of Companies claims the last two to be dormant. Also, a trademark search revealed that Application No. 1131647, Proprietor: IKEA Furniture Private Limited has been abandoned. However, with regard to the first company i.e. IKEA Home Décor Private Limited, the owner made a statement to the business standard, stating (here)– “We have no relationship and connection with the Swedish firm. We will definitely oppose their retail chains under the IKEA brand”. 

Inter IKEA Systems B.V. which is the owner and franchisor of the IKEA Concept, has several registered trademarks in India (for eg. - Application Nos. – 1523574, 1523584, 343317 etc.).Though IKEA has not yet approached the courts for trademark infringement, it may have a justified case as it is evident that the Indian companies are free-riding on its goodwill in order to sell their products. 

The report cited another recent and similar case of an Indian company infringing a foreign company’s (that was planning to enter the Indian market) trademark where the Delhi High court (see order) passed an ex parte ad interim injunction restraining the Indian company from using the same brand name. This was the case of a Bangalore based company – ValueNet Ecommerce which infringed US based Groupon’s trademark by operating a daily deals site called Groupon.in. The Indian firm has a registered trademark for Groupon (Application No. 1868095) and the US firm has a pending application with regard to this wordmark (Application No. 1942245, Application Date – 26/03/2010). Litigation is under way with the matter still pending with the Delhi High court for final disposal. 

Wal Mart’s trademark case was another similar case in this regard. In this case, the Delhi High Court restrained an Indian firm named ‘Wal-Mart Stores Pvt Ltd’ from using Wal Mart’s brand name. This case was covered on spicyip (for more read here). Though the injunction in this case was based on trans-boundary reputation, it shows that trademark infringement by Indian companies of foreign brands is becoming a regular affair!

Read More

Latest In: Delhi HC bars Bisleri from using brand Maaza in India

Source

In a closely followed and rather interesting trademark dispute, the Delhi HC recently in a division bench order barred Bisleri International from using the trademark Maaza to market its products in India.

Briefly revisiting the facts: 

In 1993, Golden Agro Products assigned rights in a number of products(Limca, Thums-up..) to Coca Cola. The agreement contained a negative covenant that allowed Coca Cola to use the trademark Maaza only on products sold in India, and nowhere else. Golden Agro later amalgamated with Bisleri International.

Around 2007, Coca Cola got a whiff of Bisleri marketing products under the trademark Maaza in Turkey. Coca Cola promptly sent a legal notice to Bisleri, who replied that in addition to using the mark internationally Bisleri also intended to use the mark in India.

Coca Cola moved Delhi HC:

Coca Cola moved the Delhi HC to injunct Bisleri from selling Maaza in India. In 2009, a single judge bench of the Delhi HC passed an order which permitted Coca Cola to continue using the trademark Maaza and market its products, which we reported here. Bisleri obviously appealed against the decision.

Latest - Appeal quashed:

Only last week, as this news reportsuggests, the Delhi HC expressly barred Bisleri from selling Maaza products, however specified that the company may continue to manufacture Maaza on Indian soil, provided the stock is exported. A more thorough analysis is in store for the reader, once the order shall be out on the HC website.

Meanwhile, the dispute over using Maaza remains unresolved in international markets. Bisleri is already selling in four markets abroad, and Coca Cola applied to register the mark in Turkey, which it later withdrew. 

Wonder how the dispute in overseas markets shall be resolved, when Coca Cola takes its brand Maaza international!

Read More

Part II: Digitization- Growth trends of the Film and Television Industry: comparative analysis

Contrary to the fears of digitization viewed as the harbinger of doom to the film industry, the global film industry is intact and continues to churn out thousands of films annually. The report stated UNESCO’s finding of increase in feature film production from around 5,600 films in 2005 to 7,200 in 2009 and recorded a total of 31,519 feature films produced globally between 2005 and 2009.[1] Regionally, the US produced around 700 films both in 2005 and 2009, Germany produced 146 films in 2005 and 216 in 2009, Russian film production went from 161 to 253 between the same period and UK made 100 films in 2005 which increased to 130 in 2009.[2] Box office revenues have also been increasing in these countries – for example, the France box office saw a 4.7% increase in revenues, UK’s saw a 5.2% increase and Germany’s saw an increase of 4.1%.[3]

A slightly different growth pattern has been witnessed in India. India is home to the world’s largest film industry – Bollywood, which produces, as reports say, roughly twice the number of movies as the American film industry, and sells 2.5 times the number of box office tickets as the U.S market.  However, an overall study of the number of films produced by the Indian film industry shows that film production is sliding.  This evidenced from the following numbers - 1325 feature films were produced in 2008 but only 1255 films were produced in 2011, following a steady decline from 2009 (1288) and 2010 (1247).

The cause for this decline cannot be accurately ascertained but it pertinent to note that inspite of the decline in production, KPMG expects revenues from Indian cinema to grow from $ 2.3 billion in 2008 to $ 3.6 billion by 2013(here). This report also confirmed the that the Indian film industry grew by 11 % in 2010 to Rs 65,200 crore and is excepted to be worth Rs 1,27,500 crore by 2015.

Moreover, the sources of revenue for this industry (in India) have been increasing. A report by E&Y on the Media and Entertainment Industry, noted that though theatres were still the primary sources of revenue (60%), other revenue streams such as pre-selling satellite, home video rights and revenue from new media such as online rights and mobiles is increasing. However, the E&Y report also notes that the Indian film industry continues to lose around Rs. 50 billion per year due to piracy and is one of the top countries in peer-to-peer file sharing infringements worldwide.

Not only is the film industry flourishing despite digitization but also the television industry. As the report states, the European Audiovisual Observatory noted a significant increase in TV channels – growing from a few hundred in 1999 to 9,800 channels in 2010.[4] Similarly in India, according to reports (hereand here), the TRAI released data in its quarterly report with regard to number of TV channels in India till 31 Dec 2011 to be 825 channels. The report also stated that India has 44.21 million private DTH subscribers as of 31 December 2011.

This vast demand has also resulted in a significant increase in revenues of television production companies. As a report states – “Three years ago, it was impossible to find a television production company that had crossed the Rs 30-crore barrier, except, of course, Balaji Telefilms. Now there are more than half-a-dozen of them. Vikatan Televistas (Kolangal, Thirumathi Selvam), Optimystix (Comedy Circus, Saas Bina Sasural) and Hats Off Productions (Khichdi, Sarabhai vs Sarabhai) among others have just made it to the Rs 80-100 crore club. They will, in the coming year or two, cross the Rs 100-crore mark”.  

Conclusion

This analysis goes to show despite the emergence of digitization of content, the tide is still high for creativity, revenues and demand for videos and films in the entertainment and media industries worldwide. Opponents to digitization feared that new technology would primarily– threaten creativity, lead to exploitation of creators and would lead to a socio-economic crisis caused by loss of jobs, lowering of revenues etc. (here) However, digitization has brought to fore a large pool of talent that can and has contributed to enhancing the levels of creativity in these fields. Also, these industries by tapping into revenue streams of digitization have and can make whooping profits. Moreover, as many have argued (here), the issue of exploitation of creators may not be directly related to digitization of content and may be more appropriately addressed by ensuring balanced contracts. With regard to the socio-economic impact of digitization, the numbers clearly show that inspite of digitization, the entertainment industry is prospering and fears of loss of revenues and loss of jobs may not be well placed. Therefore, though the landscape for artists has changed due to the emergence of new technologies, the way forward is mould policies to tap into and adapt to these new technologies and methods.

---

[1] Michael Masnick Michael Ho, The Sky is Rising (Regional Study) on the Entertainment Industry, CCIA Floor 64., at p. 12 (Video Production).

[2] Id.

[3] Id., at p. 14.

[4] Id., at p. 13.

Read More

Part I: Digitization of content: a comparative analysis of growth trends in the music, film and television industries.

This post consists of two parts. Both parts examine the impact of digitization on the entertainment industry. The first part analyzes the growth patterns of the music industry (international as well as domestic). The second part analyzes the growth trends of the international and domestic, film and television industry. The conclusion seeks to show that inspite of digitization the entertainment industry is doing well in terms of output, revenues and creativity.

Across the globe policy makers are coming to terms with digitization of content and are beginning to realize that a digital copyright reform is a necessity and no longer an option. This realization stems from the recent proliferation of digital content and the tremendous socio-economic benefits associated with such a trend. Digitization of creative industries has lead to increased competitiveness, job creation and economic growth. This is evidenced by studies that note (here) – “The cost of non-digital Europe is significant: according to a recent study, the EU could gain 4% GDP by stimulating the fast development of the digital single market by 2020. This corresponds to a gain of almost EUR 500 billion and means that the digital single market alone could have an impact similar to the 1992 internal market program.”

Statistics collected by the report ‘The Sky is Rising’[1] (hereinafter ‘the report’) show a marked increase in music, books, video and video game sales and output in countries like the US, UK, France, Germany, Spain  and Russia, inspite of digitization of content. These statistics buttress the premise that digitization has lead not only to economic growth of the entertainment industry but also increased creativity and diversity within this industry.

Growth trends of the Music Industry: comparative analysis  

The report showed that contrary to common assumptions, the music industry is not dying or waning due to digitization. As evidenced in the report, music production is at an all time high- “Globally, the media metadata service Gracenote has indexed over 130 million music tracks, and over the years, it has been adding about 10-15 million songs to its database in a remarkably consistent manner, year after year.”[2]

Not only is music produced by famous recording labels and professional artists increasing but also music produced by amateur artists.[3]This was evidenced by a simple search on YouTube for ‘cover song’ which produced tens of thousands of results.[4]This goes to show that diversity in music is on a rise thus leading to more creative output. Also, as pointed out in the report, diversity is increasing not only with an increase in number of amateur artists but also increasing with regard to the creation of new genres of music. [5]Such diversity, therefore, presents an opportunity to the music industry to tap into the growing talent and take advantage of this diverse market.

Music production in India is also rapidly increasing. Amateur artists in India are fast growing and a similar, but more specific YouTube search for ‘cover song Indians’ produces 21,000 results, ‘cover songs Hindi’ produces around 50,000 results, are only indicative of the potential and diversity the Indian music industry has at its disposal. Given that India has several regional languages, has a Bollywood, a Sandalwood, a Kollywood and a Tollywood!, the number of amateur artists simply making cover songs is obviously enormous. Moreover, shows like the ‘Indian Idol’ promote amateur singers showing thereby that more yet-to-be-famous singers are getting publicity via non-traditional media outlets. The various ways new technologies and methods allow exposure of talent is important for any music industry and as the report points out, completely excluding this increasing pool of talent (no matter how untalented they may be in the “deep end”) would miss out on where the music industry is going and how it may spread in the future.[6]

With regard to music revenues, it has been reported that “globally, the recorded music industry is transitioning to selling more digital music (rather than physical media), and the revenues from digital songs are starting to match up to the revenues from physical media sales”.[7]

The table, using statistics from the report,[8] shows that digital music revenues of US, Italy and France have risen drastically, however, Russia’s and Spain’s have not -

Digital Music Revenues

Country	2010	2011	Increase/decrease
US	$190 million (2004)	$3.5 billion
France	215 million	275 million	27% increase
Italy	42 million	49 million	16% increase
Spain	44	44	0
Russia	73 million	43 million	41% decrease

In the UK, digital music revenues have recently surpassed physical media revenues and UK song writers are earning more from digital royalties (increase of 3.2% in 2011).[9]Digital music sales are also fast growing in Germany, up over 21% in 2011.[10]

The decline in revenues in Russia has been attributed to various suspected factors like piracy and file sharing, decline in ringtone royalties with the emergence of smart phones and the scarcity of legal digital music services.[11]However, there is no evidence of a decrease in demand for music and some attribute this decline to be part of a temporary business cycle phenomenon.[12]Though similar factors could have affected and lead to a decline in Indian digital music sales, numbers show that Indian digital music sales have actually increased. 

As reported, according to the FICCI-KPMG Indian Media and Entertainment Industry Report, 2012, sales of physical music of the Indian music industry decreased by 19 per % year-on-year but this was compensated by a significant increase of 24 % year-on-year sales in digital music. It was also noted that “interestingly 90 per cent of the total digital music sales have come from the mobile segment”. This could be attributed to the scarcity of internet music services in India. With the emergence of more such platforms, Indians believe that they will be able to explore new genres of music and increase demand for non-film genres (here). The FICCI-KPMG report also estimated that the Indian music industry would grow at CARG 17% to Rs. 18.66 billion by 2015, with digital music acting as the key growth driver.

With regard to digital music sales through mobile phones, areport stated that Kolaveri Di made it to Airtel’s 2011 top-sellers as it was downloaded 210,000 times within 18 months of launch. This report also stated that a survey among 170 million mobile customers of Airtel revealed 150 million music mobile music downloads last year. These are statistics of just one telecom player in India!

Moreover, another report in 2011, recorded that the ratio between digital music sales and physical sales is now around 70:30 and is heading towards 80:20. However, this report also states that since audio launches through CD’s help procedures publicize their films and that some users value tangible ownership of CD (though this is fast changing), physical copies continue to be preferred by regional music industries. 

---

[1] Michael Masnick Michael Ho, The Sky is Rising (Regional Study), CCIA Floor 64.

[2] Id., at p. 2 (Music production)

[3] Id. at p. 4.

[4] Id.

[5] Id.

[6] Id.

[7]Id., at p. 5 (Music revenues).

[8] Id. at p. 6.

[9]Id.

[10] Id.

[11] Id.

[12] Id.

Read More

Patent office notifies the next patent agent examination

Our patent office, yesterday, notified the dates for the upcoming patent agent examination.  The next qualifying examination for patent agents will be held on 4th and and 5th May 2013 at Kolkata, Mumbai, Chennai, New Delhi and Nagpur. 

Based on the DIPP notification issued after the cases of Anvita Singh (discussed here), and Renu Rampal (discussed here), the weightage for viva is 25% of the weightage given to the written examination.  

Our patent office has also clearly described the pattern of the upcoming examination.  

Paper – I will consist of two parts, A and B.  Part A will again consist of two parts, A1 and A2 and all questions will be compulsory. Part A1, (30 marks), will have 15 multiple choice questions of two marks each. Each question will have a up to a maximum of six choices and a maximum of two correct choices.  Part A2, (10 marks), will have 10 true / false type questions of one mark each.  Part B will consist of 8 subjective type questions and the candidates will be required to attempt any 6 out of the 8 questions.  

Because of the nature of Paper I, we suggest that candidates study the black letter law - (act and rules) thoroughly.  

Paper – II will also consist of two parts, A and B. Part-A (of 40 marks), will consist of 6 questions of 10 marks each and the candidate will be required to attempt any 4 questions. The questions will relate 

to drafting and interpretation of patent specifications and other documents required to be submitted under the Act and Rules.  Part-B, (of 60 marks), will consist of parts B1 and B2.  B1 will be compulsory and will consist of 1 question relating to drafting of claims and abstract from a given description of an invention. 

Part B2 will consist of 2 questions and the candidates will be required to attempt any 1 question. Out of the two questions, one question will relate to general engineering and the other question will relate to field of chemistry/life sciences. 

For Paper -II we suggest that all candidates look at existing granted patents, office action, file history etc. available from the patent office website.

For viva-voce, we suggest that candidates brush up on their own domain knowledge - For example - if someone is from the chemistry background - they should be able to answer basic questions from the chemistry domain.  For candidates, who are from B.Sc. Mathematics background - they should be able to answer questions related to the use of mathematics in patents, and so on.

Candidates who wish to apply for the examination may visit the patent office website between 11

th February 2013and 11th March 2013 and apply online.  Candidates will be required to enter the details into the online system and take a printout of the application form. The application form along with the 

necessary enclosures and examination fee should reach the patent office (CG Office ; Mumbai) on or before 25 March 2013.  

For further information, candidates may send queries to patentagentexam[dot]ipo[at]nic[dot]in

Last year, I had created an invitation only website for helping candidates prepare for the Paper II of the patent agent examination.  I am making that site accessible to all those who want to access it.  We at Spicyip, wish all candidates the best of luck in the preparation of, and taking the upcoming examination.

Read More

IPAB revokes several claims of yet another patent belonging to Dr. Wobben

Image from here

In a decision dated 23rd January, 2013; a bench of the IPAB, consisting of Justice Prabha Sridevan and D.P.S. Parmar, revoked 18 of the 21 claims of Patent No. 198648 granted to Dr. Alloy Wobben for “An inverter for producing an alternating or three phase current from a DC voltage”. The IPAB has ordered Dr. Wobben to amend even the 3 remaining claims, to narrow them down. The entire order of the IPAB can be accessed over here. Our previous posts on this dispute can be accessed over here. 

This is the 13th patent belonging to Dr. Wobben that has been revoked by the IPAB in proceedings brought by Enercon India Ltd. (EIL).We had blogged about the earlier 12 revocations over here, here and here along with posts on the genesis of the dispute over here. Here’s a brief recap of the issue: EIL is the Indian subsidiary of Enercon GmBH, a German company founded by Dr. Alloy Wobben. EIL is actually a joint venture by Enercon GmBH and the Mehra Group and was mainly in the business of developing and selling wind turbine technology. Although business was booming for the JV, things went sour sometime in 2007, during royalty negotiations between EIL and Enercon GmBH for the patented technology owned by Dr. Wobben. Things went south after the initial disagreements with litigation erupting all over India between the partners starting from the Bombay High Court to the Company Law Board to the Delhi High Court to the Madras High Court and finally the Intellectual Property Appellate Board. Despite the fact that the German company owned majority stake in EIL, it lost management control of the company. Soon, EIL filed revocation petitions against 23 patents granted to Dr. Wobben. In November, 2010 the IPAB revoked 12 of those patents. Those revocations had sparked a major outcry in Germany, where Dr. Wobben is seen as a great entrepreneur. In the following months a number of international papers had carried a series of stories on the disputes, primarily because the Germans were playing dirty by alleging corruption and all other kinds of nonsense against India and the IPAB. 

In the present case, Wobben’s counsel tried a number of tactics to stall the IPAB from hearing the revocation petition on merits. For starters, Wobben tried to argue that EIL did not have a locus standi to file the revocation petitions because the Managing Director from the Mehra Group was not authorized to initiate litigation before the IPAB. This was following by an argument of ‘licensee estoppel’, which bars the licensee of a patent from challenging the patent in question. Both arguments were shot down by the IPAB; the former because there was a Board Resolution which authorized Mehra to file the revocation petitions and the latter because Indian law does not recognize the doctrine of licensee estoppel. 

On merits, the claims at dispute in this patent were struck down for lack of novelty and obviousness. The actual merits of the judgment, merits an entire post of its own, which one of us will post sometime later.

Read More