Comparative advertising in India – Historical background

Comparative advertising is a marketing strategy in which a company wants to show that its product or services is better than the competitors. However, the comparative advertising is not only used to promote a product or services, it has now become a common practice in political advertising as well. An example of comparative advertising is the side by side comparison of features between two or more products in the print media. However, the competitive advertising is very much controversial in nature.
The advertising companies and manufacturers were not very much interested on comparative advertising before 1970. According to them, there might have a risk of negative impact of advertising. Such type of advertising may invite unwanted legal challenges from the competitors and the competitors may gather public sympathy as victims by counter advertising. However, from the beginning of the 1971, many countries began to encourage the comparative advertising mentioning that comparative advertising is an important tool for providing the distinctive information about various attributes of same product of different brands. The government of many countries began to formulate and enact the legislation to protect the manufacturers from disparagement that came from the competitors. The new laws encouraged the companies to publish comparative advertising. However, still now, the amount of comparative advertising is small.
Like all other countries, Government of India also took some measures to encourage the comparative advertising. The most important step was the amendment of “The Monopolies and Restrictive Trade Practices”
(MRTP) Act, 1969″. In 1984, the Union Government introduced a new chapter on unfair trade practices. In the original act of 1969, there was no specific provision for restricting many categories of unfair trade practices, like misleading and unscrupulous advertising. The 1984 amendment clearly mentioned that any representation which ‘gives false or misleading facts disparaging the goods, services or trade of another person’ to be an unfair trade practice. In some advertisements, competitive products are mentioned as ordinary products without mentioning the names of any specific product. The amendment mentioned that “other ordinary products” term in advertisements will be treated as all the rival products excluding the advertised one in the court of law.
The amendment also clarified another complex issue. When the disparaging occurred on the basis of false technical facts, a detailed scientific and technical analysis is required to establish the fact. In 1984, our legal system was not so equipped to dispose the technical and scientific matters within a short period. The process was lengthy and it took a long time to settle the dispute. In that case, the plaintiff could appeal for an injunction on publishing the advertising. The court generally granted the interim injunction. However, the advertising already did the damage of the competitive product. In that case, the amendment made a provision of compensation for the loss or damage. The law also set the guidelines of computing the amount of loss or damage.
After the amendment, many cases were filed in the various courts of India. Some of important cases are Regaul vs Ujala, Colgate vs Vicco, Saffola vs Fortune rice band oil and Rin vs Tide. The historic judgments in these cases attracted the legal professionals across the world.
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Delhi High Court dismisses the appeal of Marico Limited in the case of comparative advertising case Marico Limited vs Adani Wilmar Limited.

Marico Limited filed two suits seeking permanent injunction restraining Adani Wilmar Limited from broadcasting, publishing and printing the advertisement of its product “Fortune”. Both the companies are the manufacturers of rice bran oil. Saffola is the brand name of the plaintiff’s product and the brand name of the defender is “Fortune”. The plaintiff argued that the advertisement of the defendant disparaged the goodwill and reputation of Saffola. The suite is a unique example of controversial comparative advertising
The plaintiff raised objections to the following claims and statements issued by the “Fortune” rice band oil in print and visual media.

• The healthiest cooking oil of the world.
  
• 100% RBO being 100% healthy.
• Healthier than other cooking oils.(It means it is healthier than Saffola brand rice brand oil)
• The product is good for not only heart; it is also good for cholesterol immunity, skin and hormones.

The plaintiff claimed that

• The advertisings are factually incorrect, vague and misleading.
  
• The claims were not scientifically or technically established.
• The advertisement was comparative in nature and it intentionally puffed up the competitor’s product.
• The reputation and the standing of the plaintiff were damaged due to the unfair and disparaging advertisement.
• The claims of the defendant violated S. 24 of the Food Safety and Standards Act, 2006.

The senior counsel of the plaintiff raised the following points in his arguments:-
The claim of highest Oryzanol content in Fortune oil is a misleading fact. Under the Food Act and the Notifications It is mandatory to have Oryzanol content not less than 1% in rice ban oil. As Saffola brand of the plaintiff is the mix of rice ban and other cooking oils, it also contains the same proportion of Oryzanol. No document was submitted by the defender in support of the claim that Oryzanol reduces the chance of cancer.
The claims of health benefits by defendants are derived from the popular beliefs or newspapers. There is no scientific evaluation of the claim.
The defendant produced a paper submitted by Mr. Michihiro Sugano and Mr. Etsuko Tsuji titled RBO and Cholesterol Metabolism presented at VIIth Asian Conference of Nutrition it is shown that the finding is of blend of 7 parts of RBO with 3 parts of Safflower Oil unexpectedly enhancing the cholesterol-lowering potential of RBO. Therefore, the claim “100% RBO being 100% healthy” is also false and misleading.
The plaintiff also informed that they also lodged a complaint against the advertisement with the Advertising Council of India and which complaint was partly allowed.
The senior counsel of defendant (Adani Wilmar Ltd.) contended that the said advertising only highlighted the qualities of their product Fortune without disparaging the goodwill of plaintiff’s product. In support of their claim, “100% RBO being 100% healthy”, they produced the documents three other RBOs namely ‘Ricela’, ‘Nutrela’ and ‘California Rice Oil Company’ which also claimed that the RBO is the healthiest oil. He also argued that the plaintiff has accused only the defendant, said nothing against the other three.
The division bench said that the court did not get any evidence of denigrating the plaintiff product in its advertising. The advertising informed the consumers that Oryzanol content in Saffola is less than Fortune. The plaintiff did not dispute the cholesterol reducing ability of Oryzanol or presence of Oryzanol in Saffola and Fortune . The court also observed that the advertisement was about showing that the defendant’s product was sufficient to meet the requirements of human body.
The court dismissed the appeal of defendant on the basis of its observation. Court also gave permission to Marico for withdrawing the appeal on 18th. April, 2013. Marico withdrew its appeal on 29th. April, 2013.
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US Business Associations urge Obama to take corrective measure for fair trade with India

The captains of seventeen leading US industry associations including including US Chamber of Commerce sent a letter to US President Obama urging him to take effective steps on discriminatory
behavior of Government of India (GOI) with the US business communities. The associations represent the industries from manufacturing to agricultural services. They mentioned that the present Indian
trade policy will jeopardize US exports, scope of domestic jobs. The signatories were also concerned about Intellectual Property Laws of India.
The policy makers of GOI have engaged in persistent pattern of discriminations providing benefits to domestic business of India at the expense of American jobs. Indian courts and patent offices have
imposed arbitrary market restrictions on medical devices and revoked the patents for a dozen of life saving drugs manufactured by multinational Pharmaceutical Companies ignoring the international norms
of World Intellectual Property Organization (WIPO).
These actions and others constitute a disturbing trend that may continue and even expand to other products, sectors, and countries. Already many developed countries are considering to follow the
footsteps of India. If that is done, global economic harmony will be destroyed and the common people will be deprived from their rights to obtain the quality goods and services. The signatories urged the president to start to start the dialogue with the Indian counterpart to remind GOI about their commitments to WIPO and WTO.
Let us analyze the allegations made by the industrial houses. How far is it true? They have not provided any specific examples of international norms violation. However, we can assume that some
recent rulings by Intellectual Property Appellate Board (IPAB) of India sparked the anger among the European and US business communities. Swiss Pharma Novartis loses patent bid of Gilvec, dismissal of Bayer appeal against Natco and revocation of Pfizer / Sugen’s patent on the drug Sunitinib by Cipla are some recent developments that created a stir among the multinational pharma companies. Section 3(d) of Patent Act was was applied in all the above cases. Multinational pharmaceutical companies expressed their dissatisfaction about section 3(d) section of patent law from the date of its modification in 2005.

What is section 3(d) of Patent law. The Act reads as “The mere discovery of a new form of a known substance which does not result in the enhancement of the known efficacy of that substance or the
mere discovery of any new property or new use for a known substance or of the mere use of a known process, machine or apparatus unless such known process results in a new product or employs at least
one new reactant”. Western countries have acquired the majority of the patents and earn extraordinary money monopolizing them. They follow an unethical strategy to protect and extend the life of the
patent. That is called “ever greening” of the patent. “Patent ever greening” is a potentially pejorative term that generally refers to the strategy of obtaining multiple patents that cover different aspects of
the same product, typically by obtaining patents on improved versions of existing products. Using of this technique is common in the pharmaceutical industries to take advantages of extending the market
monopoly of a specific product beyond its legitimate period. Modification of section 3(d) of patent law in 2005, has reduced the scope of extending the time limit. Various independent international health
workers organizations have supported the the policy of Indian Government. They have criticized the big pharmaceutical companies for making a huge profit patenting of slight modification or improvement
on previously patented technology.
However, a meeting between the Indian Parliamentary delegates and US lawmakers in this week painted a highly positive picture of bilateral relation and there is no indication of battle over IP
rights.
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.

Frito-Lay North America Loses the Patent, Trademark Infringement Case Against Medallion Foods

Frito-Lay North America filed a suite against Medallion Foods & Ralcop Holdings Corporation on the ground of following issues.
Allegations

1. The bowl shaped tortilla chips made by defendant Medallion Foods and its associate Ralcop Holdings Corporation infringe on the trademarks for similar shaped chips manufactured by the
   plaintiff.


2. The lawsuit is brought to restrain the defendant from trademark infringement, trade dress infringement, unfair competition, and dilution under United States Trademark Act. Plaintiff invested a
   large amount in unique designed product TOSTITOS SCOOPS! and the products have now become very much popular among the customers. Defendani's bowl shaped tortilla chips and its packages are
   imitation of popular TOSTITOS SCOOPS! tortila chips. The defendant has done it intentionally. Plaintiff requested repeatedly the defendant to stop manufacturing and marketing their copycat chips.
   They did not stop manufacturing and marketing the products. The Frito-Lay customers are the worst sufferers for the defendant's unlawful activities. Therefore, the plaintiff seek the court's intervention to
   stop this type of unlawful marketing strategy of Medallion Foods.

Background

1. 
   Frito-Lay is using the bowel shaped design of TOSTITOS SCOOPS! since early 2001. The plaintiff registered the trademark of for the multi-sided, bowl shaped design of the TOSTITOS
   SCOOPS! tortilla chip under the registration no U.S. Reg. 2,766,278 from the federal agency.


2. The bowl shaped design of tortilla chip created a distinctiveness from the other same type of products.


3. Frito-Lay spent millions of dollars in advertisement to popularize the bowl shaped design of TOSTITOS SCOOPS! brand tortilla chips. Frito-Lay sells tens of millions of dollars per year of
   TOSTITOS SCOOPS! tortilla chips.


4. Apart from the trademark, Plaintiff obtained the patent on the manufacturing process unique bowl shaped tortilla chips from US Patent Office. The various
   patents were issued from July,2002 to October,2003
.

5. After more than a decade, defendant began to sell tortilla chips imitating the shape and design of TOSTITOS SCOOPS! Brand of plaintiff. They also copycat the manufacturing process of the plaintiff's product.
   


6. According to the informations, the defendants' products are sold through the same outlets in the same aisles at same prices as as Frito-Lay's products. Defendant's marketing strategy is damaging the
   reputation of the plaintiff. Moreover, the customers of the plaintiff are confused by this tactice.


7. In this context, Plaintiff claimed 4.5 million dollars compensation for the damage of their reputation and and an injunction against Ralcorp Holdings, Inc. and its subsidiary Medallion Foods, Inc. for
   infringement of intellectual property and infractions under Texas law.


8. The court directed the defendant to show clear and convincing evidence that supports the plaintiff's design and manufacturing process can be used publicly. Defendants were unable to produce the
   evidence. Therefore, the court granted the plaintiff's motion.


9. Although, the summary judgement was decided on January 2013, the trial began in February 2013. In the trial process, Frito-Lay complained that defendant infringed its trade dress rights to scoop
   design and the chip packaging also.

Conclution

One of the requirements of the trade dress is that plaintiff has to produce the concrete evidence in support of consumer confusion about the source of product. The court was not satisfied with the
evidence of Frito-Lay. Frito-Lay demands a trial by jury on all issues triable of right by a jury Pursuant to Rule 38 of the Federal Rules of Civil Procedure. The court granted it.


A 10 person jury in Texas go through the 40-pages document and came to the conclusion that the bowl-shaped tortilla chips made by Ralcorp Holdings do not infringe on trademarks for similar-shaped chips produced by Frito-Lay North America.


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    Missing of trademark registration file from TMR office

In the course of ongoing legal battle between Haldiram (India) Pvt. Ltd of Delhi and a Kolkata based company “Haldiram Bhujiwala”, a sensational information was revealed. The petitioner Haldiram (India) Pvt. Ltd, requested “Trade Mark Registration Office” (TMR Office) to provide them two sets of certified copies related to registration of trademark no. 285062 from. The registrar of the office informed the petitioner that the said files were not traceable. The petitioner filed a case in Delhi court against “TMR” alleging that the files were deliberately misplaced, destroyed or hidden with the help of some dishonest “TMR” officials.
Justice S Muralidhar directed the Department of Industrial Policy and Promotion (DIPP), Ministry of Commerce and Industry to lodge an F.I.R and take an immediate step to find out the missing files. He also mentioned that the situation is alarming. TMR office filed an affidavit stating that 44,000 files (relating to the registration of trademarks) were lost from its five branches in Mumbai, Delhi, Chennai, Kolkata and Chennai and the officials were not aware about the fact since 2006. TMR officials said that these files were missing at the time of moving it from Mumbai to other centers. It was embarrassing to the Ministry of Commerce and Industry. The missing of enormous files created a shockwave throughout the country. The TMR officials and the concerned ministry could not avoid their responsibilities just filing an affidavit. Various legal organizations and the trademark owners demanded stern action against the culprits.
Under the pressure of various circles, Ministry of Commerce and Industry asked the concerned department to take stern action against the officials who are responsible for the negligence. DIPP constituted an investigation committee headed by Ms. Chandni Raina, Director of the DIPP. Ms Raina started an internal investigation to trace out the missing files and fix the responsibilities for negligence. Within few weeks, the office of the Controller of Patents, Designs and Trade Marks issued a notice claiming that the number of missing files are only 8183 that is only about 1% of total files related to registration.
DIPP informed Prashant Reddy, an eminent advocate on Intellectual Property Rights, in response to his queries under “Rights to Information Act, 2005”, no administrative or criminal action was taken against any staff of TMR was taken. Nobody was identified as responsible for missing files. However, DIPP assured the court that they would file FIR if they found any irregularities in the registration process of trademark. The investigation committee did not find anyone who was guilty in this matter. DIPP filed a FIR against unknown person for the missing files. It is another example of saving the corrupt officers by the ministry.
They also submitted a comprehensive action plan of record keeping. The following steps were taken by TMR to implement scientific record keeping.
• Preparation a list of all the live trademark files and keep the files serial and date wise to get easy access of the specific file.
• Preparation of branch wise missing files.
• Quarterly audit of all the trade mark registrations in all the trademark registry offices.
• Online registration of trademark will be mandatory from a specific cut-off date.
The positive side of the incident is that Trademark office has reconstructed most of the missing files within a short period.
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Trademark Infringement case between Sabmiller and Som Distilleries & Breweries Limited

   

Sabmiller India Limited files a suite of trademark infringement against Som Distilleries & Breweries Limited in Bombay High Court. Dr. Virendra V. Tulzapurkar, along with Mr. Himanshu Kane with Mr. Hiren Kamod, the learned advocates of the plaintiff informed the court the following facts.

Allegations against the defendant

 On 19^th February, 2009, the plaintiff applied for registration of its trademark "SABMiller India – SABMILLER INDIA" under the Trade Marks Act, 1999 ("the Act") under Application No. 1787321 in Class­21 in respect of glass bottles and in Class­32 in respect of beers; mineral and aerated waters and other non­alcoholic drinks; fruit drinks, fruit juices, syrups and other preparations for making beverages.

    The plaintiff conceived a design of glass bottle for selling beer. The company applied for registration of the said design under the Designs Act-2000 in class 09-01 and the design was registered 15th January, 2009 under No. 223479. Meanwhile, the plaintiff changed its name from SabMiller to SKOL Breweries Limited.

    The plaintiff started marketing its beer in India after January 2010. The company used the bottle that was designed under No. 223479. The bottles were also inscribed with the Company trade mark SABMILLER INDIA.

    In the second week of January 2012, the plaintiff found that the defendant was filling and distributing beer into recycled bottle instead of brand new bottles. The beer bottles used by the defendants are fully identical with the design of the bottle that was registered by the plaintiff under design no. 223479.

    Not only that, the defendant was embossing the exactly same logo SABMILLER INDIA that was the registered trademark of the plaintiff.

 History of proceedings  

Therefore, the plaintiff filed a suit against the defendant in the District court of Raison in Madhya Pradesh praying for permanent injunction restraining from infringing the defendant's registered design and trademark. The court issued an interim injunction on 3^rd February, restraining the defendant from using the said designs and trademark until the next hearing. The interim injunction was extended time to time. The case was transferred to the 3^rd. Additional District Judge and the court vacated the interim injunction on 3^rd. July, 2012.

    Thereafter, the plaintiff appealed before the High Court of Madhya Pradesh, Jabalpur against the said order. On 9^th August 2012, M.P High Court discarded the order by an interim injunction. The injunction was extended from time to time till 18^th December 2012. However, Madhya Pradesh High Court dismissed the plaintiff's appeal in final verdict.

The plaintiff filed a new suit before Bombay High Court for infringement of the trademark “SABMiller India - SABMILLER INDIA”.

Arguments of Defense Counsel

The claim should not be raised again as M.P. High Court already dismissed the plaintiff’s verdict.

The use of the recycled bottle is a common practice in the trade circle. The plaintiff also uses the recycled bottle of Kingfisher. Therefore, it is not a wrongful work.

Plaintiff is guilty of suppression of facts of using recycled Kingfisher bottles in the past.

Defendant is entitled to continue using the registered trade mark of the Plaintiff because such use is protected by the provisions of Section 30 (1) of the Act and

also in view of the provisions of Section   30 (2) of the Act. 

Verdict

The Bombay High Court ultimately gave the following verdict in favor of the plaintiff.

“The Defendant is guilty of infringing the Plaintiff's trade mark SABMiller India/SABMILLER INDIA”. 

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IPAB Rejects the Claim of "Haldiram Bhujiwala" Logo Claimed by Kolkata Based Company.

The Intellectual Property Appellate Board (IPAB) has ordered the Register of Trademark to cancel the v-shaped trademark of "Haldiram Bhujiwala", a Kolkata based company. The farm manufactures the north Indian sweets and snacks and sells it through different outlets using the v-shaped logo in the packets. The order was the outcome of a petition filed by a Delhi based Company Haldiram (India) Pvt. Ltd. The order will end a long-term family dispute claiming the ownership of the name "Haldiram Bhujiawala" and its v-shaped logo.
To understand the merit of the case, you have to go through the historical background of the family feud. Ganga Bishan, the founder of the said company was manufacturing and selling sweets, salted snacks and papad and other similar type of food products since 1942. He established and registered the Company at Delhi. He conceived the idea of the trademark as represented in a V-shaped logo from the very beginning. Haldiram was the nickname of Ganga Bishan. He was granted the trademark of the logo on 29th December 1972 vide application no. 285062 made with the Registrar of Trade Marks, New Delhi for grant of registration of the trademark. In 1956, Mr. Rameshwar Lal and Mr. Moolchand, the sons of Ganga Bishan joined the company and became partners. Rameshwar Lal retired from the company in 1958 and shifted at Kolkata.
Rameshwar started the same type of business in Kolkata. He requested his father granting him permission for using v-shaped logo for his products. His father permitted him to use the logo within Kolkata jurisdiction only. The company "Haldiram Bhujiwala" was dissolved in 1974. Moolchand acquired the exclusive rights of the logo throughout the country excluding West Bengal. Mrs. Kamala Devi, wife of Rameshwar Lal, was permitted to do the business only in West Bengal jurisdiction. In 1977, Rameshwar Lal and his son Prabhushankar Agarwal filed an application for registration of "Haldiram Bhujiwala" trademark which they were using since 1958. They were granted the trademark no. 330375 that was identical to the previous trademark no. 285062. The incident called in question the validity of the original trademark granted to Late Ganga Bishan. Legal heirs of Moolchand challenged the registration of the trademark no. 330375 in IPAB. The advocates of M/s. Haldiram (India) Private Limited contended that registration of the above trademark was made by a false claim of proprietorship since 1958 made by the respondents. The respondent, Rameshwar Lal was one of the partners of "Haldiram Bhujiwala". Therefore, he was very much acquainted with the v-shaped trademark of the company. It is a deliberate attempt of suppression and non-disclosure of facts for personal financial gains.
However, Rameshwar Lal and his son refuted the allegation mentioning that they were using the v-shaped logo since 1958; they are the rightful owner of the logo. They also contended that the said logo had become popular throughout India due to their extensive, continuous and uninterrupted effort. Therefore, they have applied for the registration of the said trademark under no. 330375.
Ms. S. Usha, Vice-Chairman and V. Ravi, Technical Member of the Board, dismissed the contentions of the respondents. They said that the respondents could not produce the sufficient evidence in favor of claiming the ownership of the said trademark.
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Threat to patent system and its solution

Patent laws protect the innovators to gain the financial benefits from their inventions. It also prevents others from getting monetary advantages using the unique ideas of others. The Word ‘Patent” is the derivative of the Latin term 'litterae patentes' which means an open letter. This type of open letter were conferred the rights of the inventors with a royal seal of kingdom. The seal was a proof king’s approval to the inventor’s rights.
The modern concept of patent law and other legal protection of Intellectual properties came after the industrial revolution in Europe. The industrial revolution opened the floodgates of new inventions. Inventors demanded the protection the rights of their unique ideas. The leading industrial countries realized the needs of formulating comprehensive patent laws to protect the financial interest of inventors. In the reign of Queen Anne, the law officers of the Crown established as a condition of grant that "the patentee must by an instrument in writing describe and ascertain the nature of the invention and the manner in which it is to be performed". United States of America introduced the first modern patent law in 1790 and France introduced it in 1791. After the development of transport system, the movement of goods from one country to another created a threat to the protection of intellectual property rights. Then the protection of IP became evident to resist the stealing the idea of one country by another country. Paris Convention of 1983 took a bold initiative to internationalize the protection of IP rights. The convention devised a mechanism to facilitate protection of IP rights simultaneously in the member countries without any loss in the priority date. Only 11 countries signed in the first Paris Convention, 173 countries have now become the members of Paris Convention (WIPO, November, 2008).
However, the misuse of the patent law has now covered a dark cloud in the utility of patent law. A section of mischievous people and organizations are extracting money from the inventors using the loopholes of the patent system. Patent trollis one of the most notorious designs for acquiring money filling a lawsuit against the inventors. On the other hand, pharmaceutical and other companies are selling the monopolized patented essential commodities at an exorbitant rate. In this way, they are exploiting the common people. Large number of vague patents is hindering the scope of new creations. Therefore, the people are now demanding the drastic reformation of the patent system.
Minute MBA, a renowned MBA School has suggested three options to fix the problem.

• Abolish patent system: Michele Boldrin and David K. Levine, two research fellows of St. Louis Federal Reserve argued, “There is no evidence that patents improve the productivity”. On the other hand, the prolonged legal battle on infringement of patents is obstructing the new inventions. Abolition of the system will save the wastage of time and money.
• Tighten the scope of what is an invention: In last year, the court ordered Samsung to pay $ 1billion to Apple. Apple started a legal proceeding against Samsung claiming that the defender ripped off the I-Phone of respondent. What was the infringement? Samsung copied the rectangular design of Apple I-Phone. Does the shape and size fall into the category of unique idea?
• Recruit more specialists and judges: Every patent application should be verified by expert panels. Patents are issued to the unique ideas. If it is not verified by the specialists, the non-innovative ideas can get the patent due to the ignorance of the patent officers. Similarly, the non technical judge cannot understand the cleverly plotted infringement case for extracting money from the genuine inventor.

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The pros and cons of Indian Drugs (Prices Control) Order 2013

Overview:The Department of Pharmaceutical in the Union Ministry of Chemicals and Fertilizers gazetted the Drugs Prices (Control) Order 2013 on May 16th, 2013. The new policy will replace the previous drug pricing policy of 1995. It will be effective from 1st July, 2013. The new order will control the pricing of 348 drug formulations mentioned in the list of National List of Essential Medicines (NLEM), 2011 instead of 74 drugs or formulations listed in the previous policy. The 348 drugs are defined in terms of specified strength. Actually, about 650 drugs in pharmaceutical selves under 27 therapeutic categories will come under the scanner of the price control authority. The new policy has authorized the National Pharmaceutical Pricing Authority (NPPA) to control the prices of the listed drugs. Anti-cancer drugs including the much talked about Zidovudine-Lamivudine-Nevirapine, Imatinib, Carboplatin, Dacarbazine, Daunorubicn, Oxaliplatin and Chlorambucil are some of the drugs that have been included in the new list.
Background: The Union Government has taken a long time to formulate the new drug policy due to internal conflict between the ministries of health and chemical and fertilizers. In the last meeting, Ministry of Finance also raised some objections. The Government was forced to issue the new policy due to a stern notification from Supreme Court. The patented drugs will not come under the recent policy. A Government appointed committee recommended bringing the patented drugs under price control policy. The government did not accept the proposal. However, government has ensured that they will make their decision on this issue within a short period.
Pricing Mechanism: In the previous regime, the pricing of the drugs were fixed on the basis of manufacturing costs declared by the drug manufacturers. Now, ceiling prices would be calculated taking simple average of the sum of prices of all the drug brands and genetic versions of the medicines having a market share equal to or more than 1%. The calculated result will be defined as "Average price to retailer". If we assume the value of the average price of the retailer is X, then the ceiling price would be
Z=X.(1+Y/100), assuming that
Z=Ceiling price
X=Average price
Y= % Margin to retailer and its value =16
The retail price of the new drug that is not available in the domestic market will be calculated on the basis of Pharmacoeconomic. It is a scientific process of drug pricing comparing the value of one drug with another drug or therapy of the same group.

Reaction: The new policy received a warm welcome from all sections of people and health activists. Indian drug manufacturers also hailed the decision. According to experts, the new policy reduces the price of the essential drugs from 30% to 60% depending on the variation of the drugs. As most of the Indian patients spend their own money for their treatment, they will get a great relief by the new drug policy. However, health activists are sceptical about the utility of the bill. In their opinion, many essential drugs were not listed in "NLEM". The list was last updated in 2003. They demanded immediate revision of the list. They also said that the pricing on the basis manufacturing cost reduces the prices of drug. They have cited the example recent ruling of the court in the case of Cipla vs Novartis regarding cancer drug Glivec.
Conclusion: We think that the new drug pricing is an initial step to provide a better healthcare facility to the people of India. For more information, you may contact Lex Protector.

Delhi High Court dismisses the appeal of Marico Limited in the case of comparative advertising case Marico Limited vs Adani Wilmar Limited.

Marico Limited filed two suits seeking permanent injunction restraining Adani Wilmar Limited from broadcasting, publishing and printing the advertisement of its product “Fortune”. Both the companies are the manufacturers of rice bran oil. Saffola is the brand name of the plaintiff’s product and the brand name of the defender is “Fortune”. The plaintiff argued that the advertisement of the defendant disparaged the goodwill and reputation of Saffola. The suite is a unique example of controversial comparative advertising
The plaintiff raised objections to the following claims and statements issued by the “Fortune” rice band oil in print and visual media.

• The healthiest cooking oil of the world.
  
• 100% RBO being 100% healthy.
• Healthier than other cooking oils.(It means it is healthier than Saffola brand rice brand oil)
• The product is good for not only heart; it is also good for cholesterol immunity, skin and hormones.

The plaintiff claimed that

• The advertisings are factually incorrect, vague and misleading.
  
• The claims were not scientifically or technically established.
• The advertisement was comparative in nature and it intentionally puffed up the competitor’s product.
• The reputation and the standing of the plaintiff were damaged due to the unfair and disparaging advertisement.
• The claims of the defendant violated S. 24 of the Food Safety and Standards Act, 2006.

The senior counsel of the plaintiff raised the following points in his arguments:-
The claim of highest Oryzanol content in Fortune oil is a misleading fact. Under the Food Act and the Notifications It is mandatory to have Oryzanol content not less than 1% in rice ban oil. As Saffola brand of the plaintiff is the mix of rice ban and other cooking oils, it also contains the same proportion of Oryzanol. No document was submitted by the defender in support of the claim that Oryzanol reduces the chance of cancer.
The claims of health benefits by defendants are derived from the popular beliefs or newspapers. There is no scientific evaluation of the claim.
The defendant produced a paper submitted by Mr. Michihiro Sugano and Mr. Etsuko Tsuji titled RBO and Cholesterol Metabolism presented at VIIth Asian Conference of Nutrition it is shown that the finding is of blend of 7 parts of RBO with 3 parts of Safflower Oil unexpectedly enhancing the cholesterol-lowering potential of RBO. Therefore, the claim “100% RBO being 100% healthy” is also false and misleading.
The plaintiff also informed that they also lodged a complaint against the advertisement with the Advertising Council of India and which complaint was partly allowed.
The senior counsel of defendant (Adani Wilmar Ltd.) contended that the said advertising only highlighted the qualities of their product Fortune without disparaging the goodwill of plaintiff’s product. In support of their claim, “100% RBO being 100% healthy”, they produced the documents three other RBOs namely ‘Ricela’, ‘Nutrela’ and ‘California Rice Oil Company’ which also claimed that the RBO is the healthiest oil. He also argued that the plaintiff has accused only the defendant, said nothing against the other three.
The division bench said that the court did not get any evidence of denigrating the plaintiff product in its advertising. The advertising informed the consumers that Oryzanol content in Saffola is less than Fortune. The plaintiff did not dispute the cholesterol reducing ability of Oryzanol or presence of Oryzanol in Saffola and Fortune . The court also observed that the advertisement was about showing that the defendant’s product was sufficient to meet the requirements of human body.
The court dismissed the appeal of defendant on the basis of its observation. Court also gave permission to Marico for withdrawing the appeal on 18th. April, 2013. Marico withdrew its appeal on 29th. April, 2013.
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Potentiality and challenges of Open Data System

A large number of databases are regularly created by government and private organizations to meet the specific requirements of the organizations. Some of the created data are not only serving the purpose of the creator, but it may be very much beneficial to the other people as well. As for example, Newton discovered the laws of gravitation. The scientists of all over world are still now working to create new theories using Newton's laws. From these theories, the people get the information about the mystery of the earth. If the scientists could not get access of Newton's laws, many mysteries of the universe could not be solved. Therefore, some types of data should be available to others for using, republishing and developing without restrictions of copyright, patent and other "Intellectual Property" laws. It is known as open data policy.
The movement for getting access to the open data is relatively new. The movement got the momentum with the introduction of World Wide Web. The individual, society, commercial establishments all along the countries are now capable of accessing, creating and sharing various types of information through internet. Empowered by the newly acquired information, the users of internet are now taking important decision, solving various problems, generating vast economic activities and taking effective steps to meet the challenges of natural calamities. Open data system is now also an important tool to increase the transparency of the public works and allow the conscious citizen to formulate effective policy and programs. However, the open data is not only restricted to only government data, it also focuses on the scientific, technical, mathematical, financial and medical data.

I am providing you the most important open data and their uses.

·          Scientific data: It is created from various scientific studiesof all categories from "A" to "z". Anybody can get access to it from World Data Center System that was instituted in the year 1957.

· Finance data: It includes the Government expenditure and revenue collection, the balance sheet of companies, stock markets, shares and bonds.
· Statistics: The data are used to indicate the progress of human development.
· Geo-Physical data: It creates the map of the region. It shows the location of buildings, roads and topographic position of the region.
· Weather: The data are obtained from the satellite image and other sources. The prediction is very much useful in case of accepting the challenge of natural calamities.
· Government data: Nowadays, most of the national Government publishes data to inform the citizens about the plan and program of the Government.
The above-mentioned data came from many sources. The main sources of data are governments, World Bank, UNESCO and various research papers.
Considering the importance of the open data system, many countries have started to open more and more data to the public. It has not only generated a huge amount of opportunities, it has also generated a large amount of businesses promoting creative ideas and reusing public data. However, there is a chance of misusing the data due to its open character. Therefore, each and every country has framed a legal framework to prevent the misuse of the open data system.
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How to convert your invention to money?

How can an inventor earn dividend from his invention? The inventor has no knowledge about how to proceed with the new idea. Some of the would-be-entrepreneurs think that someone will come at his doorstep with a fat check to purchase his innovative idea. The matter is not so easy. Inventor has to follow some guidelines to get monetary from his unique idea. If you follow the guidelines, you can end up with a fistful of money.
1. Getting Patent: Your preliminary task is to protect your idea from infringement. You have to apply for patent. The patent will give you the legal power to exclude others from making others using, selling or modifying your unique idea for 20 years. Patent will empower you to produce and market the invention or license others to do so. The filling of the patent form is complex task. You have to acquire the legal knowledge for it. Therefore, it would be better for you to take the professional assistance from a legal professional.
2. Market Evaluation: You have to evaluate the marketability of your idea perfectly. Marketability evaluation determines the financial success of the invention in the present and the future market. Only a very few patented inventions have a high marketing value. The basic factors of the marketing assessment are fulfillment of customer’s aspiration, realistic cost of manufacturing, easy availability of the product and maintenance of the quality. Nobody will be interested to license your invention if the product is not competitive with the same type of other products in the market. There is certain professional approach of deciding the objective market value. You have to hire professional invention assesses for this job. There are many invention promotion firms who offer assessment. Some of these firms are fraudulent and fake. Before hiring a consultant, you should verify the credential of the firm from the external sources. Some legitimate companies also include the patent search and marketing of the superior product in their service.
3. Licensing: After marketing assessment, you have to look for a company who will license your product. However, you can invest your fund for manufacturing the product from your idea. It requires a huge amount of money and labor. Most of the inventors cannot afford it and they do not have sufficient entrepreneur skill. There are two options of licensing. Some companies will want to license the inventor for onetime lump sum money. Another process is payment the running royalty against the sale of the product. If the onetime upfront payment is not generous, it is advisable to choose the running royalty option. Your patent lawyer may assist you in negotiation with the prospective companies. Do not try to submit your first invention to the large companies. The bureaucratic attitude of the big companies will look at your invention as unauthorized intrusions.
It requires a sustained effort to get others interested in your invention that gives you money. However, if you follow the right direction and hire the right people, you must get the license from the genuine company.
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GIs are about to get the international protection status

Darjeeling, Cognac, Tequila, Chianti are some of the names associated with certain products of specific geographical region. These products, such as Darjeeling tea of Darjeeling have earned a great reputation throughout the world for certain unique qualities and these products have become valuable assets for the local producers. The products are often exposed to misappropriations and counterfeiting by third parties due to it’s high commercial values. Therefore, the legal protections of these products are highly desirable to maintain the quality and originality of the products. The legal protection was provided by “Geographical Indications” (GI) and “Appellations of Origin” (AO), based on the recognition of the association of their quality or characteristics with a specific geographical area. The GI and AO were protected in accordance with international treaties and national laws.
World Intellectual Property Organization (WIPO) took an initiative to formulate a mechanism for the legal protection of GI Products. In the first step of their initiative, members of the WIPO made an agreement at Lisbon. The Agreement was adopted in 1956 and came into force from September 25th., 1966. The Agreement was revised at Stockholm in 1967. The Lisbon system classified the GI products into two categories. The GI products which have higher commercial values will be protected by a special trademark provided by World Intellectual Property Organization (WIPO). This special trademark is known as “Appellations of Origin” (AO). WIPO also decided that International Bureau of WIPO would keep an International Register of “Appellations of Origin” which would be available from the website of WIPO. On the other hand, other GI products were protected under the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). Many nations were vocal against the dual standard of protection. They said that the AO products are getting more protection than GI products. Many countries did not sign the treaty to mark the protest against the discrimination. Only 28 countries have signed the treaty still now.
The Working Group on the Development of the Lisbon System (Appellations of Origin) requested the International Bureau of WIPO to find out a single mechanism that will cover the protection of both the Geographical Indications and Appellations of Origin. The working group submitted a Draft Revised Lisbon Agreement on Appellations of Origin and Geographical Indications in the sixth session of the working group which was held at Geneva from December 3rd. to 7th., 2012. The draft resolution was discussed thoroughly in the next session that was held from April 29th. to May 3rd., 2013 at Geneva. In this session, the members of the working group has accepted the draft resolution for providing the same level of protection.
WIPO secretariat issued a summary by chair. The summary indicates that member states have recommended the convening of a high-level negotiating meeting in 2015 to approve the modified draft resolution. The working group agreed that a recommendation be made to the Lisbon Union Assembly in September 2013, to convene a diplomatic conference for the adoption of the revised instrument in 2015. Members of the working group are now expecting that the new revised draft will attract a wider membership.
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“Patent for humanity” award of 2013 is awarded to “Sustainable Nutrition International mission”(SNI)

Several business incentives and awards have encouraged the technological progress that has reduced the burden of the poor people. Enhanced scope of monetization of the new invention is now attracting the young scholars to participate in the research project for inventing new ideas and process. “World Intellectual Property Organization” (WPO) is now playing an important role to provide latest information on the Intellectual property related issues. “United States Patent and Trademark Office” (USPTO) has taken a bold initiative introducing the award “Patent for Humanity”. The company, educational Institution and the individual get recognition for inventing new product or system that caters the need of the distressed people. The patent owners have to apply for participating in the competition. The applicant has to mention how they will meet the humanitarian challenge with their unique technology and product. There are four categories in the competition, i.e. Medical Technology, Food & Nutrition, Clean Technology and Information Technology.
In 2013, USPO has awarded the “Patent for humanity” award to “Sustainable Nutrition International for developing supplements that help reduce malnutrition in developing countries” in the category of “Food and Nutrition”. It is the most important award of this year. The invention is a great leap forward to eradicate the poverty of the third world.
A recent survey of “World Food Program” observed that there are about 870 millions of people of the universe are undernourished. That means one eighth population of the world are not getting required food and nutrient. Food and nutritional insecurity are the main cause of socioeconomic decline, low productivity and increasing health care costs. If a child suffers from malnutrition, he will not be able to concentrate on the education due to illness of lethargy. The number of school dropouts will be increased day by day. Lack of educated people will be an obstacle to the development of the country. That means food insecurity is a great financial burden to the society. Therefore, food and nutrition security is a great tool for social and economic development.
Considering the above facts and figures, the various working groups have observed that the patent of “The Sustainable Nutrition International mission” (SNI) will provide an effective direction to bring sustainable nutrition to chronically malnourished populations. Now, we will discuss the process developed by SNI mission.
The outer layer of rice is known as rice bran. The 100 gm rice bran contains 11.3 to 14.9 gm crude protein, 34-62 gm of carbohydrates and 15-19gm of fat. SNI has achieved the technology to extract the above-mentioned bioactive nutritional components from rice bran. If these nutritional ingredients are mixed with the common foods, the nutritional values of the functional foods will be enhanced. The process will reduce the problem of malnutrition substantially.
SNI mission started a pilot project with the collaboration of Guatemala, El Salvador and Honduras government to determine the nutritional potency of rice band extract. The project was conducted among 67,000 school-age (ages 6-10) children across 76 school districts in Guatemala, 35,000 school-age children in 174 primary schools in El Salvador and among 1500 lactating mothers across the region. At the end of the first year, the program showed that the malnutrition was reduced 46%. The result was very much encouraging.
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Launching of ASEAN IP Portal-Background History

The protection of Intellectual Property (IP) rights have become a concern to the Government and the creative people. The IP rights deal with most common issues like public health, education, trade, industrial policy, traditional knowledge, biodiversity, biotechnology, the internet, the cultural industries or climate change. It has become difficult to track the IP infringement due to the rapid expansion of international norms and diversity of IP laws. Therefore, the information about the latest development in the field of IP is vital to the Government and the IP creators. Visual and print media are playing a great role to provide the information about the latest technology, patent law and other related subjects in the field of Intellectual property rights. However, this information is not sufficient to cater the needs of the IP creators.
Association of South Asian Nations (ASEAN) is working to create awareness about the protection of IP in the region through ASEAN Working Group on Intellectual Property Cooperation (AWGIPC) for the past several years. The ASEAN was founded in 1967 for promoting the economic growth, cultural development and social progress of the member nations. Currently, the organization has 10 member states. The member states are Brunei, Cambodia, Indonesia, Laos, Malaysia, Indonesia, Philippines, Singapore, Thailand and Vietnam. The group observed that there is a widening gap of knowledge and information between the developed and developing nations. The main challenge of the ASEAN Countries is to remove this barrier. Besides it, the task of formulating a common principle for IP protection is very difficult task due to the highly diverse culture of the member countries.
ASEAN countries realized that the protection of IP Rights
might become an important tool for the alleviation of poverty through social, economical and technological progress. Member nations committed to share, cooperate and work together to promote IP related issues and improve the regional framework and used their resources fully for implementing the recommendations of AWGIPC.

In this context, Association of South Asian Nations (ASEAN) has launched ASEAN IP portal on 26th. April, 2013, world IP day. According to the news release “The ASEAN IP Portal was launched today, in conjunction with World IP Day. Comprising information on ASEAN IP systems, comparative IP-related data, and web links to ASEAN IP Offices, stakeholders of ASEAN Member States can now obtain IP information for the entire ASEAN region via a consolidated platform.”
The functions of ASEAN IP is
• Create IP links with the member nations.
Share the recent development of IP legal issues among the members .
Create a common platform to exchange views regarding protection of intellectual property rights among the members.
Raise the awareness about the protection of IP rights among the common people.
Create stronger presence ASEAN countries in the world IP scenario.
In his inaugural speech, Ms Sim Ann, Senior Parliamentary Secretary, Ministry of Communications and Information & Ministry of Education, said that the introduction of the ASEAN IP would give due recognition and respect to the IP creator and it would encourage and develop the creative talents of ASEAN countries.
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Dismissal of Bayer Appeal against Natco on cancer drug

A compulsory license is a legal instrument by which a Government allows someone else to manufacture and sell the product that has been patented by another company. Bangalore based generic company was the first ever company that have the compulsory license for manufacturing and marketing the patented drug Nexavar. In the year 2008, Bayer obtained the patent of Nexavar in India. They sold the patented medicine in the brand name of Sorafenib. The drug is used for the treatment of liver and renal cell carcinoma. Bayer was selling the patented drug at INR 2,80,000.00, a pack of 120 tablets. However, CIPLA, another generic drug manufacturing company of India was selling the same generic version Soranib at INR 30,000.00. Later on, CIPLA reduced the price of the drug to INR 5400.00. Bayer has filed a patent infringement case against CIPLA that is pending in Delhi High Court. The Delhi High Court has not yet granted any injunction against CIPLA.
In this scenario, Natco applied for a compulsory license of Nexavar. They got the license from Drug Controller of India for manufacturing and marketing Nexavar in Indian market from April 2011. Bayer Corporation appealed to IPAB [Intellectual Property Appellate Board] for a stay order against the ruling of Drug Controller.
Justice Probha Sridevan, Chairperson of IPAB and technical member DPS Parmar observed that though Bayer got the patent of Nexavar in 2008, the drug is available only in four metropolitan cities, Delhi, Kolkata, Mumbai and Chennai. Another interesting fact was that Bayer imported only 200 bottles of Nexavar from 2008 to 2010. The requirements of Nexavar are 23,000 bottles per month in India. This example proves that the drug is out of reach to the majority people of India for its exorbitant price. Government has granted the patent for fulfilling the minimum requirements of Indian people. The Judges also mentioned that According to Article 31 and 27[1] TRIPS of Paris Convention, Patented life saving drugs should be available to all and patent rights will be enjoyable without any discrimination whether the products are imported or locally manufactured. Therefore, both the Judge asked Bayer to take some proactive steps to avoid the issuance of the compulsory license.
In reply, Bayer lawyer said that the company spent huge money for the invention of the drug. On the other hand, CIPLA did not spend a farthing for inventing the drug. Therefore, CIPLA can sell the medicine at a reduced price. . Bayer lawyers also argued that the company had an effective patient assistance program for the financially weaker section of the society. In this program, the company provides one month’s medicine for INR 30,000.00.
However, the attached evidence of expenditure in Research and Development for Nexavar submitted by Bayer did not justify the claim of huge investment. They also could not establish their claim of patient assistance program.
Therefore, the chairperson of the Board and other judges were not satisfied in this argument. They said that the objective of the “TRIPS” is not the conditional subsidized offer of drugs. The motto is the availability of drugs to all the people without any hindrance.
Considering the arguments and counter-arguments of both the parties the judges rejected Bayer’s appeal. The Board also imposes some conditions on Natco for retaining the compulsory license. Controller had set the price as INR 8800/- for the one month’s treatment. Natco will pay 6% commission to Bayer and they will provide the drug at free of cost to at least 600underprivileged patients per year. Bayer also agreed to sell the drug at the price of INR 30,000.00 for one month’s treatment.
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Patentability-First step of monetization of new invention

An invention requires a huge amount of money as well as dedicated effort. If you do not turn your unique idea into a positive outcome, your effort will be meaningless. Your dream will be successful by only patenting your idea. It is wise to hire a patent attorney for submission of patent application. The main duty of a patent lawyer is to search the patentability of the invention, drafting patent submission form and assisting the inventor to get approval of the submitted patent. However, if you do a preliminary research on the patentability and provide the feedback to your hired patent attorney about the invention, it will save your money and time. In this article, I will provide you some tips about the patentability search for the beginners.

Whenever you want to patent a new invention, you have to make patentability search to confirm whether this type of invention was already recorded in prior art. Prior art is not an artistic material, it is a knowledge related to invention. Prior art includes trade journals, previous patents, various publications and public discussions.
The inventor will get the information about the five basic requirements for patentability from prior art.

• Patentability of the subject matter
• Utility
• Novelty
• Non obviousness
• Enablement

Patentability of the subject matter: The patentable subject matter clearly defines what invention is. The patent is granted on the basis of this definition. Under section of 2(1)(J) of TRIPS agreement invention is defined as a new product or process that involves inventive step and capable of industrial utility. The abstract ideas and substances found in nature will not be treated as invention.
Utility: The invention must be useful. The patent examiner will determine whether the asserted utility is specific, substantial or credible.
Novelty: The patent of the idea will be granted unless the claimed invention was published in print media or it is already available for public use before the filing date of patent application.
Non obviousness: Similar types of descriptions may be available in the patent art. The patent attorney can understand the field of patent drafting and draft the application that covers the specific point. The process reduces the chance of rejection.

Enablement: Enablement is disclosure of specification that describes the workings and legal definitions of the invention. The disclosure is a part of every patent application.
The inventor should remember that patent application is a legal document. The beginners will be confused if they want to understand the essence of documents by literally meaning of the words. They have to think the meaning of the claim statements in wider and broader aspects.
The patentability analysis is another vital part of the patent submission. The analysis evaluates which part of the invention will be patented. The patent attorney can understand the field of patent drafting and draft the application that covers the specific point. The process reduces the chance of rejection.
The inventor should be very much cautious about the rejection of the patent application. Apart from losing time and money, there are many adverse effects of the rejection. The unique idea of the inventor will be exposed to the world and the competitors will get access to his work. The competitors can reap the benefits from his invention.
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