Article
Divisional Applications in India: Part II
By Shashank Kinra and Dr. Gaurav Gupta
In continuation of the article published last month in IPR Amicus, the article in this issue of newsletter further discusses the evolving law around Divisional Applications in India. Analysing two decisions of the IPAB and one of the Delhi High Court, the article notes that a divisional application can be filed when the claims of the parent application include a plurality of inventions however, the requirement that the claims of a divisional application have to be based on, more particularly, to have their route, or to be gleaned from, or clearly exist in, the claims of the parent application, appears to be a unique one and such a requirement is not seen in other major jurisdictions, such as Europe or the USA. According to the authors, while this requirement appears to somewhat narrow the scope of assessment of divisional claims, issues such as whether claims of a divisional application ought to be verbatim supported, or directly supported, or broadly supported, in the claims of the parent application, are open for discussion and adjudication…
Statute Updates – Public Notices
- Patents – Hearing intimation of only 10 days to be given – Adjournments advised to be not for more than 10 days
- Patents – Adjournment of hearings – Reasonable cause to be mandatorily specified
Ratio decidendi
- Use of trademark in form of translation or transliteration amounts to infringement – Delhi High Court
- Trademarks – Rectification petitions by defendant to be clubbed with civil suits – No requirement of staying civil suit – Delhi High Court
- Framing of issues by Court – Court can at subsequent stage also frame issues not pressed earlier – Delhi High Court
- Anti-dissection rule does not disallow significant part of two competing marks to be compared – Court also compares mental impact of competing words in the marks – Delhi High Court
- Trademarks – Indirect use of misleading country of origin/manufacture is ‘material respect’ in definition of ‘false trade description’, which is not registrable – Delhi High Court
News Nuggets
- Order containing non-understandable reasons is worse than an unreasoned order
- Not filing pre-grant opposition in proper format is not fatal
- Jurisdiction of Commercial Court clarified
- Facebook postings cannot be determining of person’s location at particular time
- Trademarks – No interim protection if mark though registered but not used for long
- Failure of Defendant in filing written statement – Court when can decree the suit without calling for affidavit in evidence
- Generic disparagement – Not every generic comparison refers to market leader
