Indian IP Law is Under Judicial Scanner Key provisions of IPAB (Intellectual Property Appellate Board) are struck down as unconstitutional in a writ petition by Madras High Court. As the awareness is being spread among IPR laws in India, the legislation on IPR and its impact on the common citizen is under Judicial scanner and we are expecting more such writ petitions being queued up in near future. It is for the first time Indian Intellectual Property rights Legislation are subject to the Judicial review and we can expect more such occasions in near future. Let us all hope for the better, unbiased and more citizen friendly IPR legislation in India.

Common or General name descriptive terms of the products are not eligible for grant of injunctions - The Supreme Court observed that micro-chip technology being the basis of many of the electronic products, the word "micro" has much relevance in describing the products and therefore no one can claim monopoly over the use of the said word. Anyone producing any product with the use of micro-chip technology would be justified in using the said word as a prefix to his trade name and thus who are familiar with the use of electronic goods know fully well and are not likely to be misguided or confused merely by the prefix `micro' in the trade name. Thus, in the nutshell, the Supreme Court has held that once it is found that the word `micro' is a common or general name descriptive of the products which are sold or of the technology by which the products are manufactured, the users of such products are not likely to be misguided or confused by the said word.

Adopting a Mark which is general to Trade i.e., several traders using the same would not entitle injunctions in the Court The Apex Court in the case of Skyline Education Institute ... vs S.L.Vaswani & Anr  (AIR 2010 SC 3221) held that if a particular word is common to the trade in that if it is widely used by several traders and thereby it becomes generic such marks would not entitle injunctions if copied by other traders. Para 17- In the light of the above, we shall now consider whether the impugned order is vitiated by an error of law apparent on the face of the record or refusal of the High Court to grant injunction in terms of the prayer made by the appellant has resulted in manifest injustice. A little journey in the backdrop of the case shows that the only ground on which the appellant sought temporary injunction against the respondents was that the word `Skyline' is a specific/distinct word and being a prior user, it was entitled to seek a restraint against ...

Interim Relief - Temporary Injunctions- should not be based on Affidavits alone -  (2010) 15 SCC 459 The Apex Court held that temporary injunctions or any interim relief cannot be granted merely by filing affidavits without any documentary evidence. For granting Interim Relief the court should consider the prima facie case established on the bases of the documentary evidence. Mere filing of affidavit would not entitle parties Interim Relief. S. 106 - Interim relief - Grant of - Determination of prior use - In absence of any evidence and only on affidavits -Impermissibility - Counter-suits for restraining use of Maharaja brand unregistered trademark by appellant and respondent against each other, both selling packaged rice - Division Bench of High Court granting interim relief to respondent in absence of documentary evidence and based solely on affidavits, concluding respondent was using trade mark prior in point of time to appellant - Impermissibility of - Held, it is in...

CAN MERELY FILING A TRADEMARK APPLICATION FOR A MARK CONSTITUTES PASSING OFF? The court in the case of K.Narayana and Another Vs. S.Murali held that merely filing a Trademark does not constitute passing off. For Passing Off need to be established, there should be  misrepresentation in the course of trade which is very essential  ingredient for establishment of the passing off case. The relevant paragraphs from the judgement are provided below:- Para 23- It was finally argued by the learned counsel appearing on behalf of the respondent before us, that, by merely filing a trade mark application, the respondent did not misrepresent in the course of trade that his goods were the goods of the appellants and therefore there was no cause of action for filing a suit for passing off, which necessarily required sale of one's goods deceptively as though it were the goods of another. Para 24- Having heard the learned counsel for the parties and after carefully examining ...