• Ankita Sabharwal

IP Jurisprudence for a Cause


“Justice is the constant and perpetual will to allot to every man his due”, a well-contended phrase by one of the most prominent Roman jurists , Domitus Ulpian is capable of elucidating the evolving notions of justice in the field of intellectual property. The concept of “jurisprudence” has witnessed an unprecedented evolution since the organization of human society. The need to understand the most “equitable” manner of judicial governance has led to the emergence of several schools of legal jurisprudence. One of the most widely accepted schools of thought in this regard is the “Sociological School of Jurisprudence”, aimed at highlighting the interdependence between law and society. This contemporary branch of jurisprudence highlighted the fact that the presence of law in any society is solely for the betterment of the society and no form of justice can survive in a standalone manner. This year as the world marked the 50th anniversary of the WIPO Convention on 26 April, the theme of this year was dedicated to “IP for a green future”. While the commemoration of this day across the globe took different forms, we endeavor to trace some of the most public-spirited Indian decisions in the field of IP. The pressing need to augment recognition accorded to “holder’s rights” in the branch of trade mark law has led to several favorable orders in the recent past. While the concept of “public interest” has remained integral to pharmaceutical patents in India, the same has seeped in the realm of trade marks in the recent past. Even in case of copyright protection in India, certain exceptions in the Indian Copyright Act serve to protect certain specific uses of copyrighted materials, typically, where the work is for personal and non-commercial use.The Indian courts, in the last few years have directed decisions to serve the “larger good” of the society especially against infringers of intellectual property. In a suit where the infringers were selling counterfeit RAY BAN sunglasses, they were directed to distribute 500 pieces of unbranded glasses to the Blind Relief Association, instead of paying compensatory damages. In another matter, namely Dharampal Premchand v Tata Zarda Factory[1], the Defendants were applying the plaintiff’s BABA ZARDA trademark to their tobacco-based products. The court ordered the defendants to install spittoons in cancer hospitals in Hyderabad. With a view to penalize unauthorized duplication of protected content, the court directed an infringer caught with unlicensed Microsoft software to work with Microsoft in anti-piracy campaigns and participate in seminars to advocate the correct and legal use of software. In an attempt to move towards greener litigation, the Delhi High Court in a contempt proceeding[2], granted costs of Rs. 80 lakhs to be paid by the Defendant entity and directed that the same amount is used for planting 1,40,000 trees on the Central Ridge in Delhi. In another contempt proceeding[3] concerning an intellectual property dispute, the Hon’ble High Court of Delhi passed a public-spirited order wherein the Defendants were directed to work towards the benefit of adolescent girls and supply wholesome mid-day meals to 10 government schools and an NGO called “Bachhiyon Ka Ghar” for a period of two years, in order to emphasize on the need for good nutrition for the development of healthy children. The defendants were also directed to supply sanitary napkins for female students in the aforementioned institutions on the 5th day each month for a period of one year, in order to assist and aid in the maintenance of health and hygiene of adolescent girls. Some other directions to the defendants included installation of a Reverse Osmosis Water Purifier at the NGO “Bachhiyon Ka Ghar”, in order to instil and emphasize the need for potable water and provide 20 tournament size footballs to each of the aforesaid institutions and to 20 more government schools, as Social chooses, in order to promote the spirit and fun of sports and to foster friendship and team-spirit on the playfield.


In what is popularly known as the “Ralph Lauren Order”[4], the Defendant who was found selling counterfeited “POLO” t-shirts was directed to donate the infringing clothes to an orphanage instead of destroying the products. These attempts made by Indian courts especially in the field of IP are commendable, since they enable the creation of judicial system which aims at the formation of a reformative society. Such orders serve the multiple purposes of penalizing the wrongdoer, compensating the wronged party in the form of benefit towards corporate social responsibility and promoting public interest and public good.



CONCLUSION


Louis. D. Brandeis once quoted that “If we desire respect for the law, we must first make the law respectable”. In any democratic country, the role of the judiciary assumes great importance in determining the rights and interests of the public at large, and recent judgments delivered by the Indian judiciary have re-affirmed the same. Intellectual property laws simply lay down the statutory provisions which define the general direction in governing the intellectual and proprietary rights of the holders. Thus, the major task of interpretation of those laws in such a manner that serves the larger good of the society rests with the judiciary. The present trend adopted by the judiciary in deciding cases involving proprietary laws has been praiseworthy, and welcomed by various social organizations in India.



[1] Dharampal Premchand v Tata Zarda Factory (CS (OS) 2/2006)

[2] Merck Sharp and Dohme Corp and Another vs. Abhaya Kumar Deepak and Another, CONT (CAS) (C) 846/2018

[3] Hermes International & Anr. v Riyaaz Nasruddin Amlani & Ors., CONT. CAS (C) 660/2018 & CM No. 9044/2019

[4] Polo Ralph Lauren Corporation v Arora (CS (OS) 1354/2006)

The article was originally published on www.lexology.com on May 14, 2020 and can be accessed here.

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