Coronil, the much marketed and advertised product offered by Baba Ramdev’s Patanjali had run into many imbroglios and legal hurdles since it was unveiled and introduced as a medicine to fight the COVID-19 coronavirus. Already facing criminal complaints and restraining orders against offering the drug for sale coupled with executive oversight into the drug’s claims the much controversial Coronil has again met another legal action. This time however it is not the prophylactic or curative merit of the drug but rather the name by which it is marketed itself in question. Needless to go into the controversy of whether Coronil can work wonders against the pandemic let us head straight into the nonmedicinal dispute at hand.
Recently, Madras High Court passed an order restraining Patanjali from trading the drug under the name “Coronil” as it infringed upon another person’s trademark and proprietary rights in the name “Coronil”. However, a perusal of the order shows that the aggrieved party is not some competing pharmaceutical giant but a company which deals in chemical cleaning and manufacturing of material handling systems and polymeric epoxies for various factories in India and abroad. M/s Arudra Engineering Pvt Ltd. (the plaintiff) brought a suit against Patanjali and was successful in getting an interim injunction restraining the latter from infringing upon the former’s trademark. The plaintiff had registered its trademark ‘CORONIL -92 B’ for trading its products which were used for industrial cleaning and chemical preparations for industrial use in 1993 itself and the trademark was renewed from time to time. The trademark still subsists due to its timely renewal. The plaintiff has customers in India as well as abroad and its products are traded under the abovementioned trademark. It has also made a substantial amount of sales using the trademark.
The court was inclined to grant the injunction since the plaintiff was successful in fulfilling the ingredients as laid down in S. 29(4)(b) of the Trademarks Act, 1999 which states that even if the infringing trademark is used to trade goods or services which are unrelated to goods or services traded under the infringed trademark still it will amount to infringement of the trademark. In this case clearly the Coronil tablet offered by Patanjali is claimed to cure the ailment of coronavirus and thus is distinctly dissimilar and different from the trade of the plaintiff who deals in industrial cleaners and chemicals. However, after arriving at the observation that the spelling and name used by Patanjali is same as that of the plaintiff the interim injunction was granted keeping in mind the law as enumerated in S. 29(4)(b) of the Trademarks Act, 1999.
In view of this ex parte adinterim injunction a very pertinent question is raised as to the due diligence and intellectual property management strategy which Indian companies need to undertake before launching a product especially if it is marketed and claimed to be a breakthrough like Coronil. It seems that Patanjali Ayurved had done too little or no due diligence before launching the product in the market. There seems to be a certain haste in launching the product not just in relation to its medicinal claims and merits but also its branding. For a product which has not made much headway in the medicine market vis a vis its curative and prophylactic claims the injunction granted against Patanjali has come as a great setback as both the inherent and overt claims in the name “Coronil” seem to be facing an existential crisis. A simple trademark availability search would have averted an impending crisis. If it was brought to the notice of the company’s management that the proprietary right in the trademark would be divested due to the rights of another party then probably the branding trajectory of Patanjali would have been surely different. It is a matter of trial and fact to see what was the original intent of the plaintiff to injunct Patanjali from using the trademark as in my opinion there does not appear to be an inadvertent confusion as to the origin and association of the Coronil tablet with some other/ competing proprietor among the public at large. Moreover, the imbroglio as to its medicinal efficacy has raised even more eyebrows and inextricably linked Coronil to Patanjali Ayurved. However, there can be other claims as to distortion and dilution of the trademark of the plaintiff.
A simple search on the Controller General of Patents, Designs and Trade Marks online registry shows that the trademark Coronil is not just a registered trademark of the plaintiff in class 1 but even a deceptively similar mark under the name “Coronill” is also pending registration before the Trade Marks registry under the same class (class 5) in which Patanjali has filed a trademark application for marketing its alleged cure. This shows a great lapse on the part of Patanjali in devising an intellectual property acquisition strategy and the hurdles faced at the outset set the ball rolling for much more potential litigations. Here, it would also be important to focus on the brand value which “Coronil” will acquire if it clears both the hurdles of its proprietary right in the name and the medicinal efficacy of the same. If a brand faces such an uphill task as soon as it is introduced then there would be a need to introduce much more corrective marketing strategies to be implemented by Patanjali. The customer trust and good will which Patanjali has enjoyed till now may also be jeopardized.
Since, there are concerted efforts on the part of the Indian industry to be self reliant and sufficient vis a vis decreasing its dependence on foreign imports and products in the light of the recent geo-political maneuvers the Indian industry needs to not just produce and manufacture products and offer services but also correct its IP strategy and take IP management seriously. A small step taken in the right direction may go a long way in enhancing and increasing the brand value and reputation of the products. Basic steps like due diligence and availability search may help to steer clear of potential legal disputes. It is worth noting the zealousness and proactive approach with which the plaintiff has succeeded in guarding and asserting its trademark rights. Indian FMCG giants and MSMEs have a leaf to take out of this trademark dispute in brand strategizing and value creation.
Adv. Amar Patil practices at the Bombay High Court.
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Delhi HC asks trial court to consider Sharjeel Imam’s bail plea for relief
The Delhi High Court has instructed a trial court to first consider former JNU student Sharjeel Imam’s application for relief under Section 436-A CrPC on the grounds that he has been in custody for 31 months following a 2019 sedition FIR, in accordance with the Supreme Court’s directive to keep sedition cases on hold.
According to Section 436-A, a person might well be released on bail by the court after serving a sentence of up to one-half the maximum allowed for the offence against him up until the end of the trial.
Imam claims that because he has been imprisoned for more than a year and a half since his arrest in February 2020 and has served more than half of the maximum sentence of three years under Section 153A (promoting hostility among religious groups), he is entitled to the advantage of being released.
A speech that Imam delivered at Jamia Millia Islamia in 2019 is the subject of a charge against him that was filed at the New Friends Colony (NFC) Police station.
Justice Anoop Mendiratta asked the trial court to consider the Supreme Court’s order keeping the offence of sedition in abeyance when deciding whether to grant the applicant’s request for default bail on Monday (September 26), while permitting him to withdraw his application for regular bail in a 2019 sedition case.
Appearing for Imam, his counsel Ahmad Ibrahim told the judge that the trial court, while dismissing his bail plea, had only made observations against him with respect to offences under Section 153A and 124A (sedition) and opined that no case was made out under other offences.
The counsel argued that the only offence which now warrants consideration of the trial court during the hearing of bail plea is Section 153A as offence of sedition has been kept abeyance.
Special public prosecutor Amit Prasad told the court that Imam’s bail plea pending before High Court may be withdrawn in entirety, as it may not be appropriate to consider the application under Section 436A CrPC in a piecemeal with reference to Section 153A of IPC.
Delhi High Court restrains Axis Bank from substituting PS Toll Road Pvt Ltd (PSTR) as the concessionaire of the Pune Satara Toll Road Project
The Delhi High Court has restrained Axis bank from substituting PS Toll Road Pvt. Ltd (PSTR) as a concessionaire of the Pune Satara Toll Road Project. The order authored by Justice Anup Jairam Bhambani found Axis Bank in breach of its own undertaking given before the court.
The court says Axis Bank is bound by its undertaking given to the court in February 2021 & then in March 2021 that it will not go ahead with the substitution of the concessionaire in the PS Toll Road project, without the court’s nod.
Delhi HC says Axis Bank’s undertaking was unconditional, and therefore it cannot rely upon any event under the Concession Agreement or the Substitution Agreement, to appoint a new concessionaire in the project.
PS Toll Road Pvt Ltd (PSTR), the concessionaire of the Pune Satara Toll Road project, had challenged the appointment of a new concessionaire in the project by the Axis Bank despite a stay on the process by the Delhi HC in March 2021.
PS Toll Road Pvt Ltd, in its appeal before the Delhi HC, has contended that Axis Bank was in breach of its own undertaking given before the court in 2021, that it will not finalize the bids or award the contract to a third party, thereby substituting the PS Toll Road Pvt Ltd.
Sr. Adv. Neeraj Kishan Kaul with Sr. Adv. Dayan Krishnan and Adv. Mahesh Agarwal of Agarwal Law Associates (ALA) represented PS Toll Road Pvt. Ltd.
Court has issued notice to Axis Bank and the matter will be heard on 28 September.
PS Toll Road Pvt Ltd is a subsidiary of Reliance Infrastructure Ltd. and was awarded the contract for six laning of 140 KM of stretch between Pune and Satara in Maharashtra on BOT basis. The project is now complete.
Supreme Court: Permanent injunction cannot be sought on the basis of an unregistered agreement to sell
The Supreme Court in the case Balram Singh vs Kelo Devi observed and stated that a relief of permanent injunction cannot be sought on the basis of such an unregistered document/agreement to sell.
The bench comprising of Justice MR Shah and Justice Krishna Murari observed that a plaintiff cannot get the relief indirectly which otherwise he/she cannot get in a suit for specific performance.
In the present case, a suit has been filled by the plaintiff praying for a decree of permanent injunction restraining the defendant from disturbing her possession in the suit property, which was claimed on the basis of the agreement to sell of which was an unregistered agreement/document to sell on ten rupees stamp paper. The suit was dismissed by the Trial Court by the original plaintiff and refused to grant permanent injunction and allowed the counter-claim of the defendant. However, the First Appellate Court reversed the Trial Court judgment and decreed the suit. The second appeal filled by the defendant was dismissed by the High Court.
In appeal, the defendant-appellant contended that an unregistered agreement to sell is not admissible in evidence and that the suit filed by the original plaintiff was only for permanent injunction and she did not seek the relief for specific performance of agreement to sell by adopting a clever drafting as she was well aware that she would not succeed in the suit filled for specific performance on the basis of an unregistered agreement to sell. On the other hand, it was contended by the respondent-plaintiff that an unregistered document can be used for collateral purpose and therefore both, the first appellate Court as well as the High Court have rightly passed a decree for permanent injunction while considering the agreement for selling of collateral purpose for grant of permanent injunction.
The Apex Court observed, while allowing the appeal:
However, having conscious of the fact that the plaintiff might not succeed in getting the relief of specific performance of such agreement to sell as the same was unregistered, a suit was filed by the plaintiff simplicitor for permanent injunction only. In a given case, it may be true that an unregistered document can be used and/or considered for collateral purpose and at the same time, the plaintiff cannot get the relief indirectly which otherwise he/she cannot get in a suit for substantive relief, namely, in the present case filled for the relief of specific performance. Thus, the plaintiff cannot get the relief even for permanent injunction on the basis of such an unregistered document/agreement to sell, more particularly when the defendant specifically filed the counter-claim for getting back the possession which was being allowed by the learned trial Court. It has been cleverly prayed by the plaintiff for a relief of permanent injunction only and did not seek for the substantive relief of specific performance of the agreement to sell as the agreement to sell was an unregistered document and therefore on such unregistered agreement/document to sell, no decree for specific performance could have been passed. By clever drafting, the plaintiff cannot get relief.
Therefore, the court restored the Trial Court judgment dismissing the suit and allowing the counter-claim.
Supreme Court refuses to stay EC proceedings on Shinde’s claim, ‘real’ Shiv Sena tussle
On Tuesday, a constitution bench of the Supreme Court allowed the Election Commission of India to go ahead and decide Maharashtra Chief Minister Eknath Shinde’s claim that his faction represents the “real” Shiv Sena.
The bench comprising of Justice D.Y. Chandrachud dismissed the plea of Uddhav Thackeray camps to stay the ECI proceedings. It was argued by Mr. Thackeray that the Shinde faction was facing disqualification proceedings for defection under the 10th schedule and that the ECI should wait until the question of disqualification was decided.
The Supreme Court stated during the hearing that there was a bit of problem with Mr. Thackeray’s argument that the ECI proceedings under the Symbols Order of 1968 should be “stultified” merely because of a disqualification process against the Shinde function was pending before the Assembly Speaker.
Also, the bench comprising of Justice M.R. Shah, Krishna Murari, Hima Kohli and P.S. Narasimha stated that “we direct that there would be no stay of the proceedings before the Election Commission”.
It was observed that the Thackeray-led Maha Vikas Aghadi government had collapsed after a revolt by Mr. Shinde and the 39 other legislators against the Sena leadership.
On June 30, Mr. Shinde was sworn in as the CM along with BJP’s Devendra Fadnavis as his deputy.
The Supreme Court had referred to a five-judge bench on August 30, the plea filled by the Thackeray and Shinde-led factions raising several constitutional questions related to defection, disqualification and merger.
It was also stated that it had been asked the Election Commission Of India (ECI) not to pass any orders on the Shinde faction’s petition that it be considered the “real” Shiv Sena and be granted the party’s poll symbol.
However, the bench led by the then Chief Justice N.V. Ramana has said that the batch of petitions raise important constitutional issues which is relating to the 10th schedule of the Constitution pertaining to the disqualifications, power of the speaker and the governor, and judicial review.
It is provided by the 10th schedule of the Constitution for the prevention of defection of the elected and the nominated members for their political parties and contains stringent provisions against defection.
Earlier, it has been submitted by Thackeray faction that party MLAs loyal to Shinde can save themselves from disqualification under the 10th schedule of the constitution only by merging with another political party.
It has been contended by the Shinde group that the anti-defection law is not a weapon for a leader who has lost the confidence of his own party.
Supreme Court Collegium Recommends To Elevate Bombay HC Chief Justice Dipankar Datta As Judge Of Supreme Court
The Supreme Court Collegium has recommended to elevate Bombay High Court Chief Justice Dipankar Datta as a Judge of the Supreme Court.
Justice Datta is the son of a former Calcutta High Court Judge, late (J) Salil Kumar Datta and brother-in-law of Justice Amitava Roy, former Supreme Court Judge and was born in February 1965.
However, in 1989, he obtained his LL.B. degree from the University of Calcutta and was enrolled as an Advocate on November 16, 1989. Further, he worked as a Junior Standing Counsel for the State of West Bengal from May 16, 2002 to January 16, 2004 and as a Counsel for the Union of India since 1998.
From June 22, 2006., he worked as a Judge of the Calcutta High Court. On April 28, 2020., he was elevated as the Chief Justice of Bombay High Court.
He has passed several significant judgements as CJ of the Bombay High Court, including home vaccination for the bedridden and has directed a preliminary enquiry against Anil Deshmukh – Maharashtra Home Minister at the time, and an authoritative pronouncement on an illegal construction.
Supreme Court: Notice issued on DCPCR plea challenging Juvenile Justice Act 2021 amendments making certain offences non-cognizable
The Supreme Court in the case Delhi commission for protection of child rights v UOI observed and issued in a petition filled by the Delhi Commission for Protection of Child Rights (DCPCR) challenging the 2021 amendment made to the Juvenile Justice (Care and Protection) Act 2015 (JJ Act), which came into force on 1st September, 2022, whereby certain categories of offences against children have been made non-cognizable.
The bench comprising of Justice D.Y. Chandrachud and the Justice Hima Kohli observed, the counsel, Advocate, Mr. Preteek K Chadha appearing for DCPCR argued that the amendment sets out a less stringent standard than the Code of Criminal Procedure, 1973 or the unamended JJ Act.
However, the commission is challenging the 2021 Amendment to the extent it made the following categories of offences non-cognizable:
A. Using of children for drugs peddling
B. Using of children by terrorists
C. Exploitation of the child employee
D. Cruelty against the children
It was observed when the offences are non-cognizalbe, the police cannot register FIR and the investigation can commence only on the basis of a complaint filed before the concerned Magistrate.
Further, in 2021, the Juvenile Justice (Care and Protection of Children) Amendment Act, 2021 was passed to amend various provisions of the Juvenile Justice Act, 2015 which received the assent of the President on 07th August 2021. As the Amendement Act is yet to be notified. Thus, there are 29 Amendments carried out in the Juvenile Justice (Care and Protection of Children) Act, 2015 by the Amendment Act, 2021.
It is stated that Section 26 of the Amendment Act categorizes serious offences i.e., offences with an imprisonment for a term of three years and above, but not more than seven years as non-cognizable offence. Such offences include sale and procurement of children, employment of children for child begging, exploitation of child employee, giving intoxicating liquor or narcotic drug to a child, etc.
It is argued by the commission that such categorization violates Article 14 and 21 of the Constitution of India and also various other international obligations under the United Nations Convention on the Rights of the Child for which India is a signatory. However, such categorization is contrary to the scheme of the Juvenile Justice Act which is progressive in nature and protects children against all forms of exploitation.
Before the Court, it was argued that the categorization is also contrary to the general scheme of IPC wherein offences punishable with imprisonment for more than three years are categorized as Cognizable whereas offences are punishable with imprisonment for up to three years as non-cognizable offence. Consequently, there is no reasonable justification or rational nexus sought to be achieved by reclassifying the cognizable offences as non-cognizable offences.
The petition stated that on 08.04.2022, it is mentioned that five State Commissions for Protection of Child Rights representing the States and Union Territories of Chandigarh, Delhi, Punjab, Rajasthan and West Bengal in exercise of their powers vested under Section 15 of the Commissions for Protection of Child Rights Act, 2005 recommended to the Government of India that a Bill be tabled in the Parliament for further amending the Juvenile Justice Act, 2015 in order to restore the cognizability status of the serious offences under the Juvenile Justice Act, 2015. It is stated by DCPCR that no such response has been received from the Central Government on the recommendations.
Against this backdrop, the plea has been filled seeking a declaration that declaring the amendment to Section 86 of the Juvenile Justice (Care and Protection of Children) Act, 2015 by way of Section 26 of the Juvenile Justice (Care and Protection of Children) Act, 2021 as unconstitutional and violative of Articles 14 and 21 of the Constitution of India to the extent it makes offences under the Act which are punishable with imprisonment for a term of three years and above, but not more than seven years as non-cognizable.
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