Infringement of copyright – Trademark Registration in Cochin
Infringement of copyright, breach of confidentially, damages and delivery up etc.
The constitutional right of free expression is powerful medicine in a society as diverse and populous as ours. It is designed and intended to remove governmental restraints from the arena of public decision, putting the decision as to what views shall be voiced largely into the hands of each of us, in the hope that use of such freedom will ultimately produce a more capable citizenry and more perfect policy and in the belief that no other approach would comport with the premise of individual dignity an choice upon which our political system rests. The defendants have consented to the regime for the expansion of the UK confidentially Club to Indian counsel and both the plaintiffs and the defendants subsequently signed undertakings accepting this regime and the terms of the expansion and use of the UK confidential Documents for the benefit of these proceedings. As regards the other contentions raised by the defendants, it appears from the record that when the suit was first time listed before the court on 2nd April, 2007 along with the interim application, the court is sued the summons to the defendants and notices in the interim infringement applications. However, in one of the copyright applications, four local commissioners were appointed by the Court visit the premises of the defendants to take the samples of master batches and the product being manufactured by the defendants. They were also directed to make mirror copies of the hard disks of the computers found in the premises of the defendants. The other assignments were also granted to the Local Commissioners; the same are mentioned in the order dated 2nd April, 2007. Later on, it was reported by the Local Commissioners in their respective reports and notice of their reports was taken by the Court in the order dated 15th May, 2007 that the defendants, except defendant No. 2, has acted in an extremely highhanded manner and they appeared to have blatantly defied the orders of the court. The local commissioners were also physically manhandled and were not permitted to execute the commission. Considering the fact of the matter, interim order was issued against the defendants from manufacturing or marketing insecticides – impregnated mosquito facts till further orders.
The allegations of the plaintiffs against the defendants in the subsequent pleadings were that deposit of order of injunction dated 15th May, 2007 issued against the defendants; the defendants have continued to market and manufacture the insecticides impregnated mosquito nets. The plaintiffs filed contempt petitions being I.A. No. 8622/2007 dated 31st August, 2007. In the first application being I.A. 8622/2007 it was urged by the plaintiffs that the defendants are supplying the Net profit product to Syngenta S.A. for onward sale. Further, on 18th June, 2007 the plaintiffs addressed a letter to Syngenta S.A. to inform them of the pending litigation between the plaintiffs and the defendants as well as the interim order passed by the Court. The said company replied to the plaintiffs vide letter dated 25th July, 2007 which reveals that the defendants are continuing to manufacture and market insecticide-impregnated nets. It was also mentioned in the application that the defendants have acted in collusion with each other to defeat the purpose of the order of this Court and the defendant No.1 has shifted his operations to Shobika Industries. In the second application under order 39, Rule 2A CPC being I.A. No. 4544/2008, the plaintiffs have referred the marketing presentation released by the defendants in respect of the impugned product, net protect. The particulars of the presentation were given in paragraph-5 of the said application which read as under:-
- Page 2 of the presentation contains an admission that the trademarks Intection and Net profit are owned by Best net Europe Ltd., Defendant No.8 herein;
- Page 3 of the presentation refers to Net protect as “Polyethylene with incorporated deltamethrin”;
- Page 4 of the presentation shows that the presentation was prepared and distributed subsequent to the order of injunction, as the presentation refers to events in December, 2007.
- Page 5 of the presentation also indicates that the presentation is subsequent to the order of injunction, as it refers to large field studies held in July, September and October, 2007 and the September 2007 large filed study was held in India;
- Page 15 of the presentation identifies that the nets are produced in Tamilnadu, India, presumably by defendant No.1. The same page also identifies that the master batches are produced in New Delhi, presumably by Defendant No.3.
- Page 15 also speaks of the production capacity of the defendants throughout 2008. Specific reference is made to a production capacity of 5,00,000 nets per month in January, 2008, notwithstanding the order of injunction, and an expected increase in production capacity in June, 2008 amounting to 7,50,000 nets per month rising to a production capacity of 1 million nets per month by December, 2008.
The plaintiffs have filed the images of defendants “Net protect product and packaging obtained in Sudan with a product label identifying its production date as August 2007 which postdates the order for injunction. The plaintiffs have also filed the copy of an invoice dated 17th September, 2007 for the supply of 1, 81,000 of the defendants”. Net protect products to the United Nations Mission in Sudan under Purchase order MIS07-1108 and a packing list for the same purchase Order MIS07-1108 dated 14th September, 2007 from defendant No-8 herein for 28,300 of the defendants”.Net protect products to the United Nations Mission in Sudan. The label, packaging, invoice and accompanying packing list expressly identify that the products originate from the defendants and the packing list expressly identify that the products originate from the defendants and the packing list dated 14th September, 2007, which was almost four months after the date of the order for injunction, identifies Tamilnadu, India as the origin of the goods. The plaintiffs have also found out that on or about 19th March, 2008 the defendants signed a distribution contract with Ostegaard Group, a company based in Denmark, authorizing it to supply defendants Net protects products all across Africa. In the third application being CCP No. 93/2008, the plaintiffs have produced the copy of the website of the defendants No.6 and 11 with the following details:-
“Defendant No. 10 and 11 herein, intelligent Insect Control limited, are headed by defendant No.6, Mr. Ole Skovmand, and operate a website, where they advertise the impugned product, Net Protect. The petitioners are filing a printout of the said website, taken on 21st April, 2008, which states “Net product represents the latest technological development in the field of insecticide impregnated mosquito nets”. Further on, the website states the admitted position that Net protect is a PE Net. In light of this document alone, the semantic distinction drawn by the Contemnors to avoid the injunction, fails miserably. The contemnor’s interchangeable use of the terms “impregnated” and “incorporated” in describing their PE product, Net protect, is evidence that the distinction is artificial and intended to mislead this Hon’ble High Court. Further evidence of the defendants interchangeable use of the terms “impregnated” and “incorporated” in describing their PE product, Net protect, can also be seen from the fact that defendant No.6 is the co-author of a publication entitled “Net protect, a new generation of long lasting impregnated mosquito net” which the defendants published to coincide with the initial launch of their Net protect PE product in Cameroon in November 2005. The petitioners have filed a printout of publications in 2005. The petitioners have filed a printout of publications in 2005 by The Centre IRD de Montpellier listing this publication which expressly identifies defendant N0.6 as its co-author.
The above facts have been extracted by this court from the three applications filed by the plaintiffs against the concerned defendants after passing the interim orders. No doubt, referring these statements made by the plaintiffs in the said applications does not mean that the plaintiffs do not have to prove the same at the time of hearing of the pending applications, but prima-facie, there is sufficient material placed on record and it has become necessary in order to determine the real issue involved in the matter, that the prayer made in the application be allowed in view of the guidelines issued by the Division Bench in the order dated 2nd August, 2012. Under these circumstances, the present copyright application is allowed. In order to devise a procedure to ensure the confidentially of the information, documents, database etc. the following directions are passed ordering production of the same:
- The plaintiffs UK Solicitors from the law firm of FIELD FISHER WATERHOUSE LLP will submit the “UK confidential documents” as defined in paragraph 10 (d) of the present application to the Registrar General of this Court in sealed covers or boxes within 8 weeks of this order subject to any constraints imposed upon them by the UK order dated July 02, 2009.
- The Registrar General will take the UK confidential documents in sealed covers or boxes on record;
- The undertakings voluntarily submitted by the members of the confidentiality club identified in Annexure 4 to the application and those subsequently admitted to it in respect of the UK confidential documents (“the members”) will be applicable to the “Indian confidential Documents” as defined in paragraph 10 (a), (b), (c) of the present application;
- Whenever these relate to or require any confidential documents about the certain copyright application to be relied on or quoted from or arguments addressed thereon will be conducted in camera or in Judge’s chambers, with only the Members permitted to be present. If necessary, court may take the assistance by appointing an expert or advocate on the subject in order to arrive at a decision;
The Registrar General shall keep the documents in sealed covers under lock and key and allow access to the confidential documents only to the members on the following terms:
- That the undertakings voluntarily signed and provided by the Members shall also be applicable to the Indian Confidential documents which shall also comply the conditions governing the usage and reference to the UK Confidential Documents, which will be recognized and apply equally to the Indian Confidentially Documents.
- That the sealed cover documents would be opened by the court for its own perusal and reference and reseal these.
- That the Registrar General of this court be empowered to de-seal the documents for inspection by members in his presence, on formal request being made by either party to the Registrar General with simultaneous intimation to the opposite counsel who have the option to remain present for such inspection. The documents shall be resealed thereafter by the Registrar General.
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