The Consumer Protection Bill 2018 proposes penalty for misleading advertisements: Consumer Protection Bill 2018 (hereinafter the ‘Bill’), for the first time, proposes penalty for misleading advertisements as well as establishes liability for endorser of a misleading advertisement. Critical for the e-commerce industry, the Bill defines ‘direct selling’, ‘e-commerce’ and ‘electronic service provider(s)’ and empowers the Central Government to prescribe rules for preventing unfair trade practices in e-commerce and direct selling. The Bill further introduces various provisions related to product liability for manufacturers, sellers and service providers, unfair contracts and food adulteration. Introduced in January 2018, the Bill has been recently passed by the Lok Sabha on 20th December 2018 and is now pending approval from the Rajya Sabha. Proposal to expedite patents for women and small entities: The Department of Industrial Policy and Promotion (DIPP), government of India has recently published draft amendments to the Patent Rules of 2003, proposing expedited examination of patent applications for women and small entities among others, in addition to the existing category of start-ups. The draft amendments also propose waiver of fees for online filing of international patent applications through the Patent Cooperation Treaty (PCT), and preparation and transmittal of priority documents via the recently implemented WIPO Digital Access Service (DAS) among other changes. The draft amendments are currently pending and shall be finalised after consideration of the comments received from the public.
Bihar’s Silao Khaja granted GI protection: Silao Khaja, the traditional delicacy of Nalanda district of Bihar was recently granted registration as a Geographical Indication. Silao Khaja is sweetmeat consisting of twelve to sixteen layers of very thin dough sheets placed over one another and is known for its taste, crispness and multi-layered appearance which is attributed to local water and climate of Silao. The delicacy has been registered by Silao Khaja Audyogik Swavalambi Sahakari Samiti Limited.
Government of India proposes to regulate the pharmaceutical brand names
In a recent development likely to impact the pharmaceutical industry in India, the central drug regulatory authority in India has proposed to ament the existing laws to introduce provisions for regulation of pharmaceutical brand names by the Central and State Licencing Authorities in India, to avoid confusion due to identical or near identical brand names of different drugs.

At present the brand name / trade name in case of pharmaceuticals is neither controlled by the Licensing Authority under the Drugs and Cosmetics Act, 1940 & Rules 1945 not the Trade Marks Office, thereby resulting in use of same/similar trade names for different drugs manufactured by different pharmaceutical companies and sold in the Indian market. This lacuna has not only resulted in litigation between pharma companies over drug brand /trade names but is also detrimental to patient safety inter alia.

The proposal to amend the law, came in response to the Delhi High Court’s order in the trademark infringement suit, Curewell Drugs & Pharmaceuticals Pvt Ltd & Anr. v. Ridley Sciences Pvt Ltd., CS(Comm) 1071/2018, initiated by Curewell Drugs seeking permanent injunction against Ridley Sciences from infringing their trademark BEVITAL used for Vitamin-B complex capsules, wherein the Hon’ble Court directed the Drug Controller General of India (DCGI) and the state FDAs to implement an action plan in which drugs with identical or near identical brand names or marks are not given licenses, so as to ensure that no confusion is created amongst doctors, chemists and patients.

Accordingly, the government has decided to amend the Drugs and Cosmetics Rules, 1945 to empower the Central and State Licencing Authorities (presently authorised to grant marketing license for drugs) to regulate brand names/trade names of drugs. The DCGI has sought 6 months’ time to finalise the draft rules as per the procedure with consultations and public meetings with stakeholders as well as the Ministry of Law and Justice.

It is pertinent to note that pharmaceutical companies have until now, exercised complete freedom on deciding the names/brands for their drugs for the Indian market. However, with the proposed changes in the law, the pharmaceutical industry will have to be more cautious while branding their products in India.
Horlicks Ltd & Anr v. Heinz India Pvt Ltd., CS(Comm) 808/2017, Delhi High Court

In a matter involving comparative advertising, the Delhi High Court confirmed that advertisement is a facet of commercial speech and even a corporate entity is protected under the freedom of speech, being a fundamental right. Further discussing the test of honesty, the Hon’ble High Court further clarified that the objective of Section 29(8) and 30(1) of the Trade Marks Act, 1999 (hereinafter the ‘Act, 1999’) is to allow honest comparative advertising and a failure of one party to point out a competitor’s advantages is not necessarily dishonest.

The Defendant, Heinz had published an advertisement for its COMPLAN brand product in newspapers comparing one cup of its health food drink COMPLAN with two cups of the Plaintiffs’ product HORLICKS, and had a disclaimer stating that “One cup of Complan (33g) gives 5.94g of protein while two cups of Horlicks (27*2 = 54 g) Gives 5.94 g of protein basis recommended pack dosage ..”. Horlicks, thereafter, filed the instant case seeking damages and permanent injunction restraining infringement, disparagement and unfair trade practices against Heinz on the ground that the advertisement wrongly stated that the amount of protein in the COMPLAN was double the amount of protein in the HORLICKS.

Plaintiffs alleged that the Defendant had manipulated the serving size of its product to have double the protein of HORLICKS and that the comparison of only one parameter based on serving size was in violation of the CODEX Guidelines for Use of Nutrition and Health Claims. Plaintiffs further submitted that the advertisement being unfair, contrary to honest industry practices and detrimental to the distinctive character of its trademark HORLICKS was also violative of provisions of the Act, 1999. It further alleged that the Defendant’s tagline “From now on, only Complan” sought rejection of HORLICKS over COMPLAN and attacked the most essential attribute of HORLICKS, i.e. its nutritional content. The Plaintiffs also submitted that the fundamental right to freedom of speech under Article 19(1)(a) of the Constitution was only available to a citizen of India and not to a corporate entity like the Defendant.

Nonetheless, ruling in favour of the Defendant, the Hon’ble High Court confirmed that advertisements were a facet of commercial speech and a corporate entity was entitled to protection under Article 19(1)(a) of the Constitution. The Hon’ble Court observed that ‘in comparative advertising a certain amount of disparagement is implicit, yet the same is legal and permissible so long as it did not mislead’. Emphasising that the concept of ‘per serving’ size was well recognised, not only in the industry but also under the statute and that the Plaintiffs themselves used the ‘per serving’ size on their packaging to ensure the safe consumption of their products, the Hon’ble Court observed that the Defendant has not manipulated its serving size, which had been constant since 1934 and the impugned advertisement comparing a material, relevant, verifiable and representative feature of the products in dispute was in fact factually correct and not in violation of the CODEX Guidelines.

The Hon’ble Court also noted that the Defendant was not obliged to compare all the parameters and clarified that ‘it [was] open to an advertiser to highlight a special feature/characteristic of his product which would set its product apart from its competitors and make a comparison with other products, as long as it is true’. The Hon’ble court observed that the test of objective use is an objective test which depends on whether the use is considered honest by  members of a reasonable audience and a mere failure to point out a competitor’s advantages is not necessarily dishonest and accordingly, held that the impugned advertisement was not violative of the provisions of the Act, 1999 as the use of the mark HORLICKS remained a source indicator of the Plaintiff’s product. Finally, rejecting the Plaintiffs’ allegations of disparagement against the Defendant’s tagline, the Hon’ble Court noted that in determining the meaning of an advertisement, the Court has to take in to account the fact that public expects a certain amount of hyperbole in advertising and the test to be applied is whether a reasonable man would take the claim being made as one made seriously.

Carlsberg Breweries A/S v. Som Distilleries and Breweries Ltd, CS(Comm) 690/2018, Delhi High Court
The Special Bench of five judges of the Delhi High Court, in Carlsberg Breweries A/S v. Som Distilleries and Breweries Ltd, held that a composite suit, joining two causes of action – one for infringement of a registered design and the other for passing off, is maintainable.

Instant suit had been filed by the Plaintiff seeking damages and permanent injunction inter alia, against the defendant restraining them from infringing the Plaintiff’s registered design for their beverage bottle and passing off. The Defendant had challenged the maintainability of the suit on the ground that cause of action for a suit for infringement of a registered design is different from the cause of action on which a claim of passing off is premised and accordingly, the two claims for passing off and reliefs regarding design infringement could not be combined in one suit and two separate suits would have to be filed.

The learned Single Judge, in the instant suit, however, in view of previous decision of a Full Bench the Hon’ble Delhi High Court on this ground, referred the question of maintainability of a composite suit for design infringement and passing off, to a Special Bench of five judges

The Special Bench after considering the submissions made by the parties, at the outset, examined the relevant provisions of the Civil Procedure Code, 1908 (hereinafter CPC), being Order I, dealing with joinder of parties and Order II, dealing with frame of suits and joinder of causes of action and noted that the purpose of these rules was to avoid multiplicity of suits. The Special Bench relying upon the Hon’ble Supreme Court of India’s decision in Prem Lala Nahata & Anr v. Chandi Pasad Sikaria (2007) 2 SCC 551, the Special Bench observed that the Order II, CPC provided that every suit shall be framed as far as practicable to afford ground for final decision upon the subject in dispute and to prevent further litigation considering them and that every suit should include the whole of the claim that a plaintiff is entitled to make in respect of the subject matter. Hon’ble Special Bench also noted that while the plaintiff  is allowed to unite in the same suit several causes of action against the same defendant, the Court may order separate trials to make such other order as may be expedient in the interests of justice where it appears to the Court that the joinder of causes of action may embarrass or delay the trial or otherwise cause inconvenience. Hon’ble Special Bench after perusing the various other provisions of the CPC, held that there is no per se or threshold bar to maintainability of a suit on the perceived ground of misjoinder of causes of action, and such an objection, is at best a procedural one which cannot result in rejection of a plaint.

Hon’ble Special Bench analysing the facts of the instant case, held that the basic facts that compelled the Plaintiff to approach a court, complaining of design infringement were the same as in the case of passing off and in such circumstances, it was inconceivable that a cause of action could be “split” in some manner and presented in different suits; and therefore, the instant composite suit was maintainable.

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