28th September, 2009

GREEN TECHNOLOGY PATENTS

Australia is fastening the patent filing process for green technology in order to avoid pendency in the work keeping a target of just four weeks as per the government source.

According to the newly introduced policy, Richard Marles, Parliamentary Secretary for Innovation and Industry added that “Green innovation requires significant investment by industry and the Australian government wants to give businesses all the support it can,".

Presently patent applications require more than a year to process in Australia which can be reduced to between four and eight weeks by accelerating the examination process. For this the applicants should request expedited examination in writing, mentioning the reason for the fast processing, once the patent application is filed although the eligibility for expedited examination will depend on the circumstances of the each case of green technology innovations. For fast examination no extra fees need to be paid by the applicant.

U.S. DISTRICT COURT BLOCKED EVISTA IN U.S. MARKET

Eli Lilly’s method-of-use patent for Evista, the brand name of the active ingredient raloxifene, has a market sale of $700.5 million, or an average of almost $2 million a day in the U.S. Evista is a drug used to treat the patients with osteoporosis (bone loss).

In response to the question of Eli Lilly’s Evist patent validity, U.S. District Judge temporarily stopped Teva Pharmaceutical Industries Ltd.  from launching its product in last April and finally came to the decision to completely block the marketing of their generic version of Evista till the Eli Lilly’s patents remain valid and enforceable. Teva Pharmaceutical Industries Ltd which is based in Petah Tikva, Israel, received the U.S. Food and Drug Administration approval for its generic version of the drug raloxifene just before the nonjury trial started in last March.

BAJAJ AUTO LTD. V. TVS MOTOR COMPANY LTD

This case was filed over the issue regarding the infringement of one of the patent (Patent No. 195904) of the appellant before the learned Single Judge of the High Court of Madras and the Learned Judge granted the interim injunction in favor of the appellant in 2008. Later on the defendant challenged the interim injunction order before the Division Bench of the High Court of Judicature at Madras and the Court allowed the appeal of the respondent/defendant.

This appeal by Special Leave Petition has been filed by the appellant alleging that the Division Bench of the Madras High Court was impugned while dismissing the interim injunction.

The Apex Court quoted the case judgment named Vardhman Rice & Gen Mills v. Amar Singh Chawalwala (decided on 7th September 2009) as "the matters of the trademark, copyrights and patents, litigation is mainly fought between the parties about the temporary  injunction and that goes on for years and years and the result is that the suit is hardly decided finally. This is not proper."

The Court opined that the proviso of Order-XVII Rule-1(2) of the CPC, 1908 relating to trademarks, copyright and patents "should be strictly complied with by all the Courts, and the hearing of the suit in such matters should proceed on day to day basis and the final judgment should be given normally within four (4) months from the date of the filing of the suit”. The Supreme Court also said that mainly in all IPR cases are pending for a years and the litigation is fought between the parties over the temporary injunction. The Court envisaged that "this is very unsatisfactory state of affairs, and hence we had passed the above quoted order in the above mentioned case to serve the needs of justice. We direct that the directions in the aforesaid order be carried out by all Courts and Tribunals in this country punctually and faithfully".

Thereafter, the Supreme Court vacated the previous order of the Court and allowed the special leave petition by directing the defendant to maintain an accurate accounts/records in respect to its all India and Export sales and also plead to the Chief Justice of Madras High Court to appoint a receiver to collect defendants accounts/records fortnightly so that the Court can dispose of the case on or before 30th November 2009.

OPINION OF THE ADVOCATE GENERAL MR. POIARES MADURO OF THE EUROPEAN UNION

This is a suit for infringement of trademark against the Google Inc. This case was filed by the different proprietors of the trademark. Google has its own 'AdWords' tool to give advertisement in their website. Generally the user of the internet open the free search engine of the Google and give the keywords and go for searching the relevant matters. There are two types results are shown by the Google after searching the key words, one is the 'normal result' and second one is the 'advertisement'.

Google operates an advertisement system which is called ‘AdWords’ that enables advertisement to be displayed, alongside natural results, in response to keywords. Now the advertisers are buys the keywords from the Google. Maximum keywords are subject to the trade mark. While the user of the internet put keywords in the Google for searching a matter many advertisement generally opened with the search results. These advertisers provides their website link to that specific Google search results page and the advertisement is also shows relevant to the keywords that is looked for by the internet user.

This issue involved the interpretation of Article-5(1) (a) and (b) of [Directive 89/104] and Article-9(1) (a) and (b) of [Regulation No. 40/94].

This case has three references; the first one is Google France v. Louis Vuitton & Ors, second one is Google France v. Viaticum & Ors and the third one is Google France v. CNRRH & Ors.

The present trade mark issue raised in France and while pronouncing the judgment the Advocate General Poiares Maduro has been analyzed these three  case proceedings.

The opponent, a bunch of the companies argued that allowing their business competitors for their advertisements to appear alongside a Google search for their products or services was a violation of trade mark law. they also argued that Google allows the internet users free access to the Google search engine and 'on entering keywords into that search engine, users are presented with a list of natural results selected and ranked according to their relevance to the keywords, determined by objective criteria.

The Advocate General opined that “Google also operates an advertising system called 'AdWord', which enables ads to be displayed, alongside natural results, in response to keywords. These ads typically consist of a short commercial message and a link to the advertiser's site; they are differentiated from natural results by their placement and design". Google is remunerated while the user of the internet clicks the advertisement web-link.

These legal proceedings have been initiated in France by the trade mark owners on the basis of legality of the use, in the AdWords advertising system, of keywords corresponding to trade marks. It has been established in those proceedings that entering certain trademarks into Google’s search engine triggered the display of Ads for sites offering counterfeit versions of the products covered by the trade mark or identical or similar products of the competitors".

NOKIA’S COURT BATTLE IN BRAZIL OVER OUVI/OVI BRAND NAME

Nokia one of the largest telecom company now in the row of trade mark infringement before the Brazilian Court. Brazilian telecom services firm Ouvi Divulgacao e Marketing em Celulares Ltd, a Brazilian telecom company which is using the mark ‘Ouvi’ since 2004. This Brazilian company has also registered the domain name ovi.com.br in 2004.  On the other hand Nokia had started using the mark ‘Ovi’ since 2007 in Brazil.

Brazil's ‘Ouvi ‘is a company involves in selling ringtones and SMS news and Nokia's ‘Ovi’  is the brand name used for its online services, videos , offering games, and other applications for customers to buy and download on their mobile phones.

Now Brazil’s ‘Ouvi’ filed an injunction petition against Nokia to refrain it from using the mark ‘Ovi’ which is substantially similar with their registered mark in Brazil. The Nokia’s contention is that the two marks ‘Ovi’ and ‘Ouvi’ are not similar in nature and the meaning of the mark ‘ovi’ is different in Finnish language, but the opponent Brazilian company contented that “What Nokia apparently has not realized is that the 190 million inhabitants of Brazil speak Portuguese and not Finnish," said Tore Haugland, chief executive of Ouvi.

The decision of this case is about to declare by the Brazilian Court very soon.