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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