In Ram Babu Dusad and Ors. v. State of Rajasthan and Anr. [D.B. Civil Writ Petition No. 13327/2020] and Rajasthan Fire Work Dealers And Manufacturers Association and Anr. v. State of Rajasthan & Anr. [D.B. Civil Writ Petition No. 13240/2020], a Division Bench [Pankaj Bhandari, J. and Chandra Kumar Songara, J.] of the High Court of Rajasthan, vide its order dated November 10, 2020, dismissed the Petitioners’ writ petitions seeking quashing of ban on sale of firecrackers. 

The Petitioners were aggrieved by prohibition on issuance of licenses for manufacture and sale of fireworks and imposition of a complete ban on sale of fireworks in Rajasthan till December 12, 2020 and approached the Court.

The Petitioners contended that the ban was in contravention of Article 19(1)(g) of The Constitution of India (“the Constitution”) which guarantees the fundamental right to practise any profession, or to carry on any occupation, trade or business. The Petitioners argued that the State Government does not have the right to completely ban a profession, and at most, it can only impose reasonable restrictions under Article 19(6) of the Constitution. The Petitioners argued that this could have been done by allowing use of eco-friendly crackers. The Petitioners also pointed out that a complete ban on firecrackers would affect the livelihood of 20 lakh workers engaged in the manufacture of firecrackers. The Petitioners further argued that they had already placed orders for firecrackers based on the reasonable legitimate expectation that licenses would be issued. 

Rejecting the Petitioners’ contentions, the Court observed that the Petitioners’ expectations could not be a basis for quashing the government’s orders or imposing reasonable restrictions. The Court noted that before issuing its directions, the State government had duly considered the representation of experts as per which use of firecrackers could seriously affect patients with asthma, COVID-19 and chronic obstructive pulmonary disease. 

The court held that the Government’s decision to ban firecrackers is not violative of the fundamental rights of the Petitioners. The Court observed, “Right to life embodies a constitutional value of supreme importance and stands on a higher pedestal than the right to practice any profession, as right to carry any business comes with a rider and Clause (6) of Article 19 permits the Government to impose reasonable restrictions. Pollution is bound to have an effect on the patients who are already suffering from Covid-19 and may also result in spreading of Covid-19 from asymptomatic patients.”

Disclaimer: Views, opinions, interpretations are solely those of the author, not of the firm (ALG India Law Offices LLP) nor reflective thereof. Author submissions are not checked for plagiarism or any other aspect before being posted.

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 In Refread Solutions Private Limited v. Scientific EResource Productions & Ors. [TM No. 20/2018], the Additional District Judge of the Central Tiz Hazari Court, Delhi, vide an order dated October 13, 2020, imposed punitive damages amounting to Rs. 5 lakh on the Defendant, along with a 3 years’ restriction on the Defendant’s trading activities in India.

 The Plaintiff claimed to be engaged in the business of providing digital/online libraries. Towards this, the Plaintiff claimed to have launched its web-based software product under the name “Refread”.

 As per the Plaintiff, the Defendants, in 2017, had approached the Plaintiff to inter alia represent the Plaintiff before the end client/customers. Thereafter, as claimed, the Plaintiff and one of the Defendants entered into an Agency Representation Agreement. In October 2017, the Plantiff claims to have been made aware of the Defendant promoting a product under “Read Smart Digital” in an international book fair. On investigating further, the Plaintiff claims to have found that the Defendant had duplicated and copied content from the Plaintiff’s website/product under “Refread”. The Plaintiff instituted the present suit inter alia for breach of Agreement and copyright infringement. The proceedings took place ex parte.

After a thorough consideration of the evidence placed on record by the Plaintiff, the Court decreed the suit in favour of the Plaintiff while awarding Rs. 5 lakhs as punitive damages. On the Plaintiff’s prayer vis-à-vis restraining the Defendants from engaging in any business similar to theirs, the Court held “…as per Section 27 Indian Contract Act reasonable restrictions for a reasonable period of time can be imposed upon the defendant… So far as imposition of restriction of 3 years is concerned such restriction seems to be reasonable…such restrictions…should be according to the territorial jurisdiction of the court…so far as imposition of restriction for a period of three years upon the defendant is concerned, it would be appropriate that it should be extended only to the Indian market.”

Disclaimer: Views, opinions, interpretations are solely those of the author, not of the firm (ALG India Law Offices LLP) nor reflective thereof. Author submissions are not checked for plagiarism or any other aspect before being posted.

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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.

Disclaimer: Views, opinions, interpretations are solely those of the author, not of the firm (ALG India Law Offices LLP) nor reflective thereof. Author submissions are not checked for plagiarism or any other aspect before being posted.

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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…”

Disclaimer: Views, opinions, interpretations are solely those of the author, not of the firm (ALG India Law Offices LLP) nor reflective thereof. Author submissions are not checked for plagiarism or any other aspect before being posted.

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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…”.

Disclaimer: Views, opinions, interpretations are solely those of the author, not of the firm (ALG India Law Offices LLP) nor reflective thereof. Author submissions are not checked for plagiarism or any other aspect before being posted.

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