In Kurichi Thangabalu Karthick and Ors. v. Raj Television Network Ltd. [Crl. O.P. No. 23077 of 2015, M.P. Nos. 1 and 2 of 2015], a Single Judge [P.N. Prakash, J.] of the High Court of Madras vide its order dated October 28, 2020, quashed prosecution against the petitioners – Kurichi Thangabalu Karthick (“Karthick”) and Kurichi Thangabalu Indra (“Indra”) in light of absence of detailed particulars on their role in the accused company.

The Respondent Raj Television Network Ltd. launched a prosecution against M/s Silver Star Communications Ltd. (“Silver Star”), Jayanthi Thangabalu (“Jayanthi”), Karthick and Indra claiming infringement of copyright in accordance with Section 51, 63, 66 and 69 of the Copyright Act, 1957 for broadcasting a film song from the Tamil feature film ‘Pandiya Nadu’ on their channel ‘Mega TV’  without obtaining any telecast rights or license. In its complaint the respondent submitted that Silver Star is the company of which Jayanthi, Karthick and Indra are directors and responsible for day to day affairs of the company and conducting its business.

The petitioners Karthick and Indra filed a quash petition claiming that the averments in the complaint were not sufficient to hold them vicariously liable under Section 69 of the Copyright Act, 1957. The petitioners also place reliance on the Hon’ble Super Court’s decision in Gunmala Sales Private Limited v. Anu Menta (2015) 1 SCC 103 to support the contention that in the absence of particulars about the role of a director in a company in excess of a basic averment, a court may quash the complaint.

The Court observed that “this Court is satisfied that in the absence of more particulars about the role of the petitioners in the affairs of the first accused company, the basic averment that the petitioners were responsible for the day to day affairs of the company and the conduct of the business of company, are themselves insufficient to uphold the prosecution against the petitioners.” and accordingly quashed the identified prosecution against the petitioners Karthick and Indra.

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In the matter of Plex, Inc. v. Zee Entertainment Enterprises Limited [Interim Application (L) No. 3737 of 2020 in Commercial IP Suit (L) No. 3736 of 2020], a Single Judge [G.S. Patel, J.] of the High Court of Bombay vide its order dated October 1, 2020 refused to grant an ad interim injunction in an action of passing off seeking to restrain the defendant from use of the word ‘PLEX’ in its online ‘cinema-to-home’ pay-per-view service to be launched a day after the hearing.

The plaintiff claimed it adopted the mark PLEX in 2008 in the US in relation to software that allows a user to share content over a media server, and that it had its first registered user from India in 2008. The plaintiff argued, inter alia, that the word PLEX is to be read in its ordinary and usual connotation as a physically constructed space comprised of many components such as a duplex, multiplex, etc., and the defendant can no more use PLEX than it could use Sony or Hotstar.

 The defendant, on the other hand, submitted apart from the services offered by it under the ZEEPLEX mark being completely different from the kind that is being offered by the plaintiff (viz. carrying one’s media wherever they go), the use of the word PLEX, is suggested by the name of its service itself. The defendant also raised the question of delay, stating that it cannot be ignored given that it had, on September 1, 2020 announced the launch of the service and the plaintiff had, nonetheless, waited till the 11^th hour to move court.

The Court concurred that parties’ services appeared to be fundamentally different. The Court while refusing an ad interim injunction held that the plaintiff had failed to establish prima facie passing off, deception or anticipated injury. In this regard, the Court noted that the plaintiff’s user base and sales were not enough to show that the defendant was acting in deceit and trying to pass off its service as being associated with the plaintiff.

While the Court emphasized that it did not refuse the injunction on this basis, it observed that “…parties in IPR matters cannot expect Courts to push aside all other cases. This happens repeatedly…It is unfair to courts and it is unfair to other litigants…”

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In the matter of Allied Blenders and Distillers Pvt. Ltd. v. Agribiotech Industries Limited (ABIL) [I.A. No. 4397/2020 in CS(COMM) 166/2020], a Single Judge [C. Hari Shankar, J.] of the High Court of Delhi, vide its order dated October 15, 2020, granted an ad-interim injunction in favor of the Plaintiff.

The Plaintiff, a manufacturer of Indian Made Foreign Liquor, alleged trademark, trade label and copyright infringement in its “OFFICERS CHOICE” and “OFFICERS CHOICE BLUE” label by the Defendant. The Plaintiff contended that the label of the Defendant’s bottle, “CHETAK WHISKEY” is deceptively similar to its label. The labels of both the parties are as follow:

The Defendant contested the suit on the ground of territorial jurisdiction by arguing that the impugned product has not been launched in Delhi and the mere presence of a party at a particular location is insufficient to sustain jurisdiction. The Defendant further argued that in cases where jurisdiction is highly contested and debatable, the Court could not grant an ad- interim relief. The Plaintiff however, argued that both Plaintiff and Defendant carry on business in Delhi and it is apprehended that the Defendant will soon launch the impugned product in Delhi.

The Court decided in the favor of Plaintiff and held that, “this Court has, consistently, been holding that, in quia timet intellectual property actions, the mere apprehension of the likelihood of the defendant launching the allegedly infringing product within the territorial jurisdiction of this Court, would confer jurisdiction on this Court…”.

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In the matter of Indoco Remedies Ltd v. Bristol Myers Squibb Holdings [FAO (OS)(COMM) 3/2020], the Division Bench [Dhirubhai Naranbhai Patel, C.J. and C. Hari Shankar, J.] of the High Court of Delhi vide an order dated September 18, 2020, dismissed the Appellant’s application seeking permission to sell generic formulation of a drug ‘APIXABAN’, during the pandemic. 

The present appeal has been filed against the ad-interim injunction, restraining Respondent from infringing the Appellant’s patent in its drug ‘APIXABAN’. The Appellant in this appeal seeks the permission to manufacture and sell its product ‘APIXABAID’, a generic formulation of ‘APIXABAN’, during the COVID-19 pandemic. Essentially, seeking the permission to sell 58, 000 strips of APIXABID, which was claimed to be manufactured prior to the impugned order. 

The Appellant primarily relied on the ground of public interest, by highlighting the importance of the drug in therapy of COVID-19 and by arguing that its drug is cheaper than APIXABAN. The Respondent argued that the Appellant manufactured these 58,000 strips of APIXABID, in full awareness of earlier injunctive orders and that the manufacturing of the infringing product is not allowed. It was further contended that the appropriate remedy in this case would have been the compulsory license, rather than requesting court to pass an order in violation of its earlier order.

The court refused the Appellant’s application and held that, “Grant of interlocutory relief, it is well settled, requires cumulative satisfaction of three indicia of existence of a prima facie case, balance of convenience and irreparable loss to the person seeking interim injunction, were injunction not to be granted…To these criteria, the Supreme Court, in its decisions…added, as another important criterion, the element of public interest. That, however, does not mean that, merely on supposed public interest, a court can grant interlocutory injunction, unmindful of the existence of a prima facie case, or the considerations of balance of convenience and irreparable loss.”

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In Narendra Hirawat & Co. v. Satish Tandon Productions & Ors. [LD/VC/I.A. No. 193A of 2020 in LD/VC No. 193 of 2020], a Single Judge [K.R. Shriram, J.] of the High Court of Bombay vide an order dated October 16, 2020, directed reinstatement of YouTube links of five of the Plaintiff’s movies, which had been taken down for copyright infringement.

The Plaintiff claimed to have copyright in five movies, which were available on YouTube. The Defendant no. 1 had issued a takedown notice to YouTube with respect to three of these movies, i.e., “Ustado Ke Ustad”, “Sautela” and “Namak”. YouTube communicated this to the Plaintiff, pursuant to which the Plaintiff filed a counter notification. YouTube informed both parties that as per its policy, if Defendant No. 1 does not respond within 14 days with evidence that it has initiated appropriate legal proceedings against the Plaintiff, YouTube will reinstate the Plaintiff’s videos. The Defendant no. 1 filed a suit in July 2020 and forwarded a copy of the plaint to YouTube, which thereafter informed the Plaintiff that their videos will not be reinstated. The Plaintiff accordingly filed the instant suit and also prayed for ad-interim reliefs. 

The Court observed that the Defendant had not sought any ad-interim reliefs since filing the suit in July, and in effect, without grant of any interim or ad interim relief, the Defendant had successfully stayed the reinstatement of the Plaintiff’s videos by YouTube.

Finding this to be prejudicial to the Plaintiff, the Court directed that pending the hearing and final disposal of the suit, YouTube “shall reinstate / reactivate the URL links referred to the five films mentioned hereinbelow and so far as the dispute is restricted to these five films, shall not disable applicant’s channel – NH Studioz from their platform…shall consider the strike notice given by defendant no.1 as withdrawn.” The Court also directed that the Defendant shall not issue any further notices in respect of the five movies which are the subject matter of the suit.

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