Court : Intellectual Property Appellate Board IPAB
..... it was submitted that if tribunals are to replace high court, then we would be rendering them toothless and if we cry that the board has no power to pass interim order it tacitly meant that the litigant must go to the tribunal for final orders and approach the high court for interim orders under article 226 of the constitution of india. ..... learned counsel submitted that without holding that the copyright board had the authority that the copyright board had the authority to direct the grant of interim compulsory licences in keeping with the doctrine of implied power, the provisions of the copyright act would be rendered some what unworkable. mr. ..... if the tribunal has exclusive jurisdiction with regard to the intellectual property rights as provided under the act, then necessarily, the board has the power and duty to balance the equity. ..... section 115 of the patents act refers to appointment of scientific advisers to assist the court but it does not speak of proceedings before the board with reference to any recent matters interim orders passed for the performance of the experiment. ..... this has to be borne in mind with regard to all the questions that arise under chapter xi of the trade marks act or for that matter chapter xix of the patents act. ..... in national green tribunal act it is specifically mentioned in section 19 (4) (i) that interim orders may be granted on any application made or appeal filed. .....
Tag this Judgment!Court : Intellectual Property Appellate Board IPAB
..... this applies not only to among others - the determination of the closest prior art ("case law of the boards of appeal", supra, chapter i, sections d-3.3 and d-3.5), the formulation of the technical problem solved by the invention (supra, chapter i, section d-4.2), and the assessment of what would have been obvious to the skilled person in the light of the state of the art (supra, chapter i, section d-6.1), but also to the determination of the technical contribution of the invention to the prior art. ..... we do not agree with the argument of the counsel of the respondent that since the right to apply for revocation of the impugned patent accrued from the date of publication of notification of sealing on 13.01.2001 and the revocation petition filed in april 2004 is clearly beyond the limitation period of three years time under article 137 of the limitation act, 1963 which expired on 13.01.2004. ..... the counsel for applicant submitted that the invention so far as claimed in any claim of the complete specification was not new, having regard to what was publicly known or publicly used in india before the priority date of the claim or to what was published in india or elsewhere. 37. ..... the miscellaneous case has been filed on 3-12-1976 i.e. .....
Tag this Judgment!Court : Intellectual Property Appellate Board IPAB
..... publication world banking and financial times year book which got affixed with the stamp of national library of india, kolkata. ..... to tphl these documents have not been legally proved and the documents would not really establish that there was use of the mark by ftl and that the fact that the stamp of national library in kolkata is found affixed on the financial times year book would not prove that there is such degree of use which is required to justify the presence of the mark in the register. ..... according to the respondent, the karnataka city civil court judgment would not operate as res judicata and the judgment itself leaves those issues untouched which are to be decided by the board and if the board accepts the findings of the city civil court and rectifies the mark, then, in the event of success in the appeal, ftl would have to start the registration process ..... according to tphl, the evidence produced by ftl is inadmissible, since the documents are neither originals, nor certified copies and the provisions of the evidence act cannot be given a complete go by, even though the board is not bound by the strict rules of evidence ..... learned counsel referred to kerlys law of trade marks and trade names (fifteenth edition) by james mellor and others wherein in chapter 8-123, it is stated that the mere use will not prove acquisition of distinctiveness. ..... kwee kor 1976 fsplr 256 where it was held that good will is local in character and has no independent existence apart from the business. .....
Tag this Judgment!Court : Intellectual Property Appellate Board IPAB
..... from this plea, it is for us to consider whether the appellant has established the trans border reputation of their product in india by any sort of spill over from the other nations where the appellants mark is registered or the appellants goods are in free circulation. 16. ..... it would appear to me that, as a matter of principle, no trader can complain of passing off against him in any territory and it will usually be defined by national boundaries, although it is well conceivable in the modern world that it will not in which he has no customers, nobody who is in trade relation with him. ..... as against the said order of the assistant registrar of trade marks, the appellant filed an appeal cm(m) 104/2001 on the file of the high court of delhi and the said appeal was transferred to this board by virtue of section 100 of the trade marks act,1999 and numbered as ta/176/2003/tm/del. 3. ..... in paragraph 3.01 at page 25, the law is stated thus:- whilst the title of this chapter is reputation we have seen that the property which is protected by a passing off action is the goodwill in the business. ..... ex.e1 is an advertisement said to have been published in the magazine bazaar published in february, 1976, ex..e2 is an advertisement in the magazine vogue. .....
Tag this Judgment!Court : Intellectual Property Appellate Board IPAB
..... hereinbefore the legality and/or validity of the board resolution dated 26.4.2007 cannot be questioned in the present proceedings which are instituted under the provisions of section 64 of the act. ..... from the above, the skilled person comes to know that the features claimed in claim 1, are clearly present in the us 677 patent and therefore the claim 1 does not involve an inventive step in view of the us 677 patent taken alone or coupled with the above referred non-patent literatures, which are open to public access and reference freely from any public library, then, there is no technical advance in the claimed invention compared to the existing knowledge available in the us 677 patent ..... the applicants counsel stated at the very beginning, that they are the one of the foremost leaders in the wind energy sectors in india and they manufacture and install wind turbines all over india and thus they are an interested person within the meaning of the section 2(1)(t) as well as the section 64 of the act ..... doubt the proceeding before a national commission is ordinarily a summary proceeding and in an appropriate case where the commission feels that the issues raised by the parties are too contentions to be decided in a summary proceeding it may refer the parties to a civil court a proceeding before the national commission, in our considered view, comes within the term suit ..... the first edition was in 1936 and the fourth edition was in 1976, which is 19 years before the priority date of the .....
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..... " andsubmitted that impuned patent is a national phase application and entered national phase in india after the isa issued the isr and the written opinion and the ipea issued the iper.he added that the applicant acknowledged that all the documents that have been filed on december 17, 2012 are available in public domain. ..... " "the board concludes from the above that the state of the art gives the person skilled in the art a concrete hint on how to solve the objective problem underlying the patent in suit as defined in point 2.6 above, namely by using in the preparation process known from document (9) a sulfuric acid which was treated with hydrogen peroxide, thereby arriving at the claimed process. ..... it is well settled that in construing the provisions of a welfare legislation courts should adopt what is sometimes described as a beneficent rule of construction; but, apart from this general consideration about the policy and object of the act, sections 78 and 84 occurring in the same chapter as section 79 clearly indicate that section 79(1) is not intended to standardise leave provisions as contended by the appellant, and that is the second reason why the appellant's argument cannot be accepted. ..... controller of patents (air 1982 calcutta 30), para 6, where it was held "in my opinion, the decision reported in manu/sc/0323 /1976: [1977] 1scrc) 96 puts an end to the controversy regarding applicability of 1963 limitation act to special laws or local laws. .....
Tag this Judgment!Court : Intellectual Property Appellate Board IPAB
..... shri gandhi submitted that the appellant is using the trade mark in india within the meaning of the expression and any other act done in india employed in sub-section (1) of section 56 of the act which means that if goods are manufactured in india for and on behalf of a trader outside india and the goods so manufactured are exported outside india on the request of such trader then that will constitute use under that sub-section. ..... in this regard it was observed as follows :- .having regard to the fact that the evidence discloses a genuine business on the part of the appellants in their country of origin, and that advertisements of such are reaching this country and appearing in libraries or places of reference to which medical men may resort, it seems to me that i am bound to consider the possibility that, with the passage of time, some conflict may occur between the use of the mark by the present respondents and the advertisement and user of the mark overseas by the present appellants. ..... irrespective of this, the documents before the registrar and the appellate board along with m.p.no.102/2007 in this appeal go to prove the appellants ownership to the mark and as such the first respondents submission to stated effect are only to divert the attention of the appellate board from the main issue to trivial issues. 12. .....
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