Defendent

PARTICIPANT CODE: TL-13
IInd TECHNOLEGAL NATIONAL MOOT COURT COMPETITION, 2017.
Before,
THE HON’BLE HIGH COURT OF DELHI
UNDER ORDER VIII RULE 6A OF CODE OF CRIMINAL PROCEDURE,1908

READ WITH THE RULE 7 OF THE DELHI HIGH COURT.
JOHNSON DENTALS DRAVIDA PVT. LTD ………………..……...….PETITIONER
V.
CINTON TECH PVT. LTD…………...……………………...………….RESPONDENT
ON SUBMISSION TO THE HIGH COURT OF DELHI
WRITTEN SUBMISSION ON BEHALF OF THE RESPONDENT
- CINTON TECH PVT. LTD

2nd TechnoLegal National Moot Court Competition, 2017.
Memorial On Behalf Of The Respondent.
LIST OF ABBREVIATIONS
J.D.U.K Johnson Dentals United Limited

J.D.D Johnson Dentals Dravida
Pvt. Private
Ltd. Limited
& And
Ed. Edition
v. Versus
U.S.I.T.C United States International Trade Commission
Anr. Another
U.K. United Kingdom
C.L. Compulsory License
U.S. Unites States of America
G.D.P. Gross Domestic Product
Etc. Extras
Cr.P.C. Code of Criminal Procedure
Cr.L.J Others
3-D Three Dimensional
¶¶ PAGE
¶ Paragraph
r/w Read with
S.C. Supreme Court
S.C.C. Supreme Court Cases
Co. Company
C.J. Chief Justice
I.P. Intellectual Property
Trade-Related Aspects of Intellectual Property
T.R.I.P.S Rights
I.P.A.B. Intellectual Property Appellate Board
STATEMENT OF JURISDICTION
JOHNSON DENTALS DRAVIDA PVT. LTD V. CINTON TECH PVT. LTD
The respondent humbly submits to the jurisdiction of the Hon’ble High Court of Delhi.
The present memorandum sets forth the facts, contentions and arguments in the present
case.
STATEMENT OF FACTS
RELEVANT FACTS
I. Cinton Tech Pvt. Ltd (Cinton) produces orthodontic appliances in the Republic of
Dravida (a country in South Asia). Cinton issued a patent on its teeth aligners named
"ORTHODENTA" which configured to be placed successively on the patient’s teeth
and to incrementally reposition the teeth from an initial tooth arrangement, through a
plurality of intermediate tooth arrangements, and to a final tooth arrangement. The
tooth arrangement was done in a well arranged manner and had the calculations gone
wrong the aligners would not be able to fit on the teeth of the patient.
II. Johnson Dentals United Kingdom (JDUK), a dental company incorporated in

Scotland, UK opens a fully owned subsidiary company in Dravida, Johnson Dentals
Dravida (JDD) which makes its aligners named "OTHODENT". JDUK had been
granted a patent in the year 2009 being Patent No. 456437 in India for the
“OTHODENT”. JDD used to scan physical models of the patient’s teeth and a digital
recreation of the patient’s initial tooth arrangement was created and this digital
recreation was electronically transmitted to JDUK, where the position of each tooth
was manipulated to create a final tooth position. JDUK then used to create digital data
models of intermediate tooth positions. One intermediate tooth position was created
for each incremental aligner. JDUK then transmitted these digital models
electronically to JDD which further used to convert the 3D prints of these digital
models into physical models.
III. Cinton approached JDD for technical assistance and license manufacturing of their
patented aligner “OTHODENT” in India on 20th January 2008, the failure of JDD to
meet the growing demand due to the import restrictions since their manufacturing unit
is in the United Kingdom. However, JDUK declined to grant the license of
manufacture for reasons best known to them. JDD had supplied 2 lakh units against
the huge demand in India at the rate of Rs. 400,000 apiece (approximately Rs.24
Lakhs per unit). Cinton was on other hand manufacturing the same piece at Rs.
40,000/- each.
IV. A technical team of JDD visited 'Teeth Line Products’, to whom the separators were
supplied by Cinton, in Mumbai to set up a teeth aligner. The product was named as
“ORTHODENTA” which was phonetically similar to “OTHODENT”.
V. Based on the above, JDD filed a suit of infringement against Cinton at the Saket
District Court. Subsequently, based on the suit filed by JDD, Cinton filed a
counterclaim against JDD at the High Court of Delhi on the ground that the accused
“articles” upon which the jurisdiction was based, were transmissions of the digital
data sets from the UK to the India and hence not patentable.
STATEMENT OF ISSUES
1. WHETHER THE DIGITAL DATA TRANSMITTED FROM THE UK TO THE

INDIA BY JDD AMOUNTS TO IMPORTATION UNDER THE PATENT'S ACT,
1970?
2. WHETHER THE PATENT OF JDD BE REVOKED BY THE COUNTERCLAIM

BY CINTON?
3. WHETHER A COMPULSORY LICENSE CAN BE GRANTED TO CINTON?
4. WHETHER THE PRODUCT OF THE CINTON INFRINGES THE TRADEMARK

OF THE JDD?
5. WHETHER THE IMPORTATION OF DATA FALL WITHIN THE PURVIEW OF

THE INFORMATION TECHNOLOGY ACT, 2000 (2008)?
SUMMARY OF ARGUMENTS

1970?
The Respondent humbly contended before the Honorable Supreme Court that the digital data
transmitted from the UK to the INDIA by JDD amounts to importation under the PATENT'S
ACT,1970 because of the the term “PROPERTY IN CYBERSPACE” refers to all the digital
assets in cyberspace and the petitioner has no authority to import to product into India and
importation of digital data falls under the ambit of digital process.

BY CINTON?
The Respondent humbly contented before the Honorable High Court that the High Court has
power to revoke the patent, and the importation of digital data from UK to the India amounts
to Importation under the Patent’s Act, 1970because the petitioner didn’t came to the court
with clean hands , and the petitioner is not duly authorized by the law .
The Respondent humbly contented that a Compulsory license should be granted to the
product of Cinton. As the product of JDD is not available to the public at large, they have
supplied very little amount of product as compared to the huge demand. And also the product
is not affordable to the general public, as it’s very expensive and the same product can be
made available to the public in a very low price by granting the license to Cinton.

OF THE JDD?
The Respondent humbly contend before the Hon’ble High Court of Delhi that the product of
Cinton is not at all infringing the trademark of the JDD’s product OTHODENT.As there are
many differences between the two logos. i.e. the color, the main symbolic word, the length
of the logo and the Writing style of both the logos were also different. Hence, both the logos
can easily be distinguished by the peoples of sound mind and it will never create confusion in
the minds of the buyers of the product.
5. WHETHER THE IMPORTATION OF DATA FALL WITHIN THE PURVIEW OF

THE INFORMATION TECHNOLOGY ACT, 2000 (2008)?
The Respondent humbly contend before the Hon’ble High Court of Delhi that importation of
data does not fall within the purview of Information Technology Act, 2000 because none
section of the THE INFORMATION TECHNOLOGY ACT, 2000 (2008) talks about the
importation of data specifically. Neither it can be interpreted from any narrowest section that
it cover importation of data nor in any precedent it talks about the domain where it can be
interpreted the importation of data fall within the purview of THE INFORMATION
TECHNOLOGY ACT, 2000 (2008). Thus, the condition whether the importation of data fall
within the purview of THE INFORMATION TECHNOLOGY ACT, 2000 (2008) is
superfluous in nature.
ARGUMENTS ADVANCED

1970?
It is humbly contended before the Honorable Supreme Court that the digital data transmitted
from the UK to the INDIA by JDD amounts to importation under the PATENT'S ACT,1970
because of the the term “PROPERTY IN CYBERSPACE” refers to all the digital assets in
cyberspace. [1.1] and the petitioner has no authority to import to product into India [1.2]
and importation of digital data falls under the ambit of digital process[1.3].
1.1 THAT THE TERM “PROPERTY IN CYBERSPACE” REFERS TO ALL THE

DIGITAL ASSETS IN CYBERSPACE.
It is humbly submitted before the Honorable High Court that in R.C. Cooper1 case, the
Supreme Court has very rightly described the definition of property as,
“Property means the highest right , a man can have to anything being that right which one has
to land or tenements, goods or chattels which doesn’t depend on other courtesy :it includes
ownership , estates and interests in corporeal things and also rights such as trademarks ,
copyrights , patents and even rights in personam capable of transfer or transmission , such as
debts; and signifies a beneficial rights to or a thing considered as having a money value ,
especially with reference to transfer of succession , and to their capacity of being injured.”
The term “property in cyberspace” refers to all the digital assets in cyberspace which can
be owned or which is capable of being protected.2
1.2 THAT THE PETITIONER HAS NO AUTHORITY TO IMPORT TO PRODUCT

INTO INDIA.
It is humbly submitted before the Honorable Court that it has been held in the Section 107A
(b) of the Patents Act, 1970 provides that:
“ (1) importation of patented products by any person from a person who is duly authorised
under the law to produce and sell or distribute the product shall not be considered as an
infringement of patent rights. Hence, in so far as Patents are concerned, Section 107A (b)
provides for parallel imports.”
1
In R.C. Cooper v. Union of India ,AIR 1970 SC 564: (1970) 3 SCR 530
2
Pavan Duggal , Legal framework on electronic commerce and intellectual Property Rights in
Cyberspace (New Delhi: Universal Law Publishing Co.Pvt.Ltd., 2014).
“(2) In any suit for infringement of a patent by making, using or importation of any machine,
apparatus or other article or by the using of any process or by the importation, use or
distribution of any medicine or drug, it shall be a ground for defence that such making, using,
importation or distribution .”
It is humbly submitted before the Honorable High Court that the Section 107 A (b) provides
for Parallel Importation of patented products. The provision declares that importation of
patented products, by any person from a person who is duly authorized under the law to
produce and sell or distribute the product, would not be considered as infringement.
The phrase "duly authorized under the law" was inserted in place of "duly authorized by the
patentee" by the Patent (Amendment) Act, 2005. Effectively, this provision refers to and
relies on the applicable local laws of the country exporting the goods to India. The provision
allows export from a country where there is no protection of the article patented in India.
Parallel Importation provision has been introduced as a mechanism to help in price control
through the act of competition. The Principle of exhaustion of right is also applicable in this
provision. In the Instant the parent company of the petitioner is a foreign based company thus
it is not entitled and not duly authorized by the law to import with accordance with the law.
Moreover, the import by it doesn’t fall in the ambit of parallel importation.
That in case of Clearcorrect Operating, Llc V. International Trade Commission3 where

alleged infringers of patents for methods of forming dental appliances and producing digital
data sets related to dental appliances sought judicial review of decision of International Trade
Commission, which found that alleged Pakistani infringer violated statute regarding unfair
practices in import trade by importing digital dental appliance models. In the Court of
Appeals, the dissent also notes that
“Section 337 does not depend on the mode of importation; it depends on whether the
imported good infringes a patent or copyright or trademark or design.” The fact that
something might infringe a patent is separate from the question of whether it is an “article.”
Both of these separate statutory requirements must be met in order to exercise jurisdiction.
1.2.1 THAT THE IMPORTATION OF DIGITAL DATA IS A PATENTED

PROCESS.
It is humbly submitted before the Honorable High court that it has been stated in the
Definitions and interpretation clause of the Patent Act,1970 the definition of various terms
3
ClearCorrect Operating, LLC v. Int'l Trade Comm'n, 810 F.3d 1283 (Fed. Cir. 2015)
used within the Act. It is from this Interpretation clause that it can be interpreted that the
importation of digital data falls under the ambit of patented process. The Following read as :
(1) In Patent Act, unless the context otherwise requires,

“(j) "invention" means any new and useful-
(i) art, process, method or manner of manufacture;

(ii) machine, apparatus or other article;
(iii) substance produced by manufacture, and includes any new and useful
improvement of any of them, and an alleged invention;
(o) "patented article" and "patented process" mean respectively an article or

process in respect of which a patent is in force;”
Here it can be interpreted that "invention" means a new product or process involving an
inventive step and capable of industrial application; and "inventive step" means a feature of
an invention that involves technical advance as compared to the existing knowledge or
having economic significance or both and that makes the invention not obvious to a person
skilled in the art”.
In the Instant case, it has to be noted that that the petitioner has been importing digital data
from abroad to India was actually a process under importation. Thus making it liable for the
importation under Patent Act.

BY CINTON?
It is humbly submitted before the Honorable High Court that the High Court has power to
revoke the patent [2.1], and the importation of digital data from UK to the India amounts to
Importation under the Patent’s Act, 1970 [2.2], because the petitioner didn’t came to the
court with clean hands [2.3], and the petitioner is not duly authorized by the law [2.4].
2.1 THAT THE HIGH COURT HAS POWER TO REVOKE THE PATENT.
It is humbly contended before the Honorable Court that Section 64 in The Patents Act, 1970
gives High Court the power of Revocation of patents. The Section 64 in the Patents Act, 1970
(1) Subject to the provisions contained in this Act, a patent, whether granted before or
after the commencement of this Act, may, 149 be revoked on a petition of any person
interested or of the Central Government by the Appellate Board or on a counter-claim
in a suit for infringement of the patent by the High Court on any of the following sub
clauses (e) to (g) and (K) grounds that is to say-
(e) that the invention so far as claimed in any claim of the complete specification is
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 in any of
the documents referred to in section 13.
(f) that the invention so far as claimed in any claim of the complete specification is
obvious or does not involve any inventive step, having regard to what was publicly
known or publicly used in India or what was published in India or elsewhere before
the priority date of the claim:
(g) that the invention, so far as claimed in any claim of the complete specification, is
not useful;
It is humbly submitted before the Honorable High Court that for the purposes of
clauses (e) and (f) of sub-section (1)-
(a) no account shall be taken of personal document or secret trial or secret use; and
(b) where the patent is for a process or for a product as made by a process described
or claimed, the importation into India of the product made abroad by that process
shall constitute knowledge or use in India of the invention on the date of the
importation, except where such importation has been for the purpose of reasonable
trial or experiment only.
2.2 THAT THE DECISION CAN’T REST ON THE LITERAL INTERPRETATION

OF THE WORDS.
It is humbly submitted before the Honorable High Court that in R. M. D. Chambarbaugwala

v. The Union of India4 while dealing with the interpretation of statutes, the court held that:
"When a question arises as to the Interpretation to be put on an enactment, what the court
has to do is to ascertain the intent of them that make it' and that intent must be gathered from
the words actually used in the statute. That does not mean that the decision should rest on a
literal interpretation of the words used in disregard of all other materials. The literal
construction has but prima facie preference. To arrive at the real meaning, it is always
necessary to get an exact conception of the aim, scope and object of the whole Act; to
consider
(1) what was the law before the Act was passed, (2) what was the mischief or defect for which
the law had not provided, (3) What remedy Parliament has appointed, and (4) the reason of
the remedy."
Now, while considering question of literal interpretation, the following rule stated at will
have to be followed :
"Where the language of a statute, in its ordinary meaning and grammatical construction
leads to a manifest contradiction of the apparent purpose of the enactment, or to some
inconvenience or absurdity which can hardly have been intended, a construction may be put
upon it which modifies the meaning of the words and even the structure of the sentence."5
2.3 THAT THE PLAINTIFF DIDN’T COME TO COURT WITH CLEAN HANDS.
In Standpack private Limited v. Oswal Trading Co.Ltd6, it was held that the plaintiff didn’t
come to court with clean hands hence, not entitled for injunction –injunction order earlier
stands vacated. In the present case, the plaintiff (JDD) had supplied only 2 lakh units against
the huge demand in India at the rate of Rs. 400,000 apiece (approximately Rs.24 Lakhs per
unit). Having acknowledged of the fact that the country is still a developing country and had
been deeply rooted in poverty at the time of and after the independence, still keeping the rate
4
R. M. D. Chambarbaugwala v. The Union of India MANU/SC/0020/1957MANU/SC/0020/1957 :
[1957]1SCR930
5
page 228 of Marwell (sic) on Interpretation of Statutes, 12th Edn.
6
Standpack private Limited v. Oswal Trading Co.Ltd.199 PTC 479 Del
of their product at such a high price shows that the plaintiff had an apathetic attitude towards
the countrymen of India and the refusal to grant the license of manufacture to defendant on its
request and keep selling the product at such a high level shows the plaintiff’s had clear
intention to maximize their profit in best possible way and hadn’t been with the perspective
of public welfare. Defendant, on other hand, was manufacturing the same product at Rs.
40,000/- each and still holding the same standards in manufacturing and showing the best
results in India keeping the perspective of public welfare in mind.
2.4 THAT THE PETITIONER IS NOT DULY AUTHORIZED BY THE LAW TO

IMPORT.
It is humbly submitted before the Honorable High Court that the Section 107 A (b) provides
for Parallel Importation of patented products. The provision declares that importation of
patented products, by any person from a person who is duly authorized under the law to
produce and sell or distribute the product, would not be considered as infringement.
The phrase "duly authorized under the law" was inserted in place of "duly authorized by the
patentee" by the Patent (Amendment) Act, 2005. Effectively, this provision refers to and
relies on the applicable local laws of the country exporting the goods to India. The provision
allows export from a country where there is no protection of the article patented in India.
Parallel Importation provision has been introduced as a mechanism to help in price control
through the act of competition. The Principle of exhaustion of right is also applicable in this
provision. In the Instant case, the parent company of the petitioner is a foreign based
company thus it is not entitled and not duly authorized by the law to import with accordance
with the law.
It is humbly contented before the Hon’ble High Court of Delhi that a Compulsory license
should be granted to the product of Cinton Tech Pvt. Ltd (Cinton).
3.1 THAT THE SECTION 84 IN THE PATENTS ACT, 1970 ALLOWS GRANT OF
COMPULSORY LICENSE.
It is humbly submitted that a compulsory license is a license granted by the government

allowing the use of an intellectual property right without the IP holder's consent. 7 It is a
formal direction given by the State to either produce generic versions or import patented
drugs or their generic versions to address public health concerns. The government allows
someone else to produce or process the patented product without consent of the owner.8 And
it is also not necessary to tell the patentee before making the product. That is what happened
in the present case.
Article 31 of TRIPS also relates in particular to non-voluntary licenses granted to third
parties. Although the term “compulsory license” does not appear, TRIPs affirms the right of
Member States to grant compulsory licenses and confirms their autonomy to determine the
grounds upon which such licenses can be granted. In many countries the government is
allowed to make use of a patented invention without previous license for reasons related to
the public interest. In France the government may rely on the Public Health Act to use a
patented invention without the need for a license in case of an emergency.9
The Doha Declaration also held that compulsory licensing is one of the flexibilities present
in the TRIPS system to address public health concerns. Countries which lacked capacity to
manufacture drugs could resort to compulsory licensing to address public health issues.
Governments could also grant compulsory licenses if they determined public health problems
to be of "extreme urgency"10
The Paris Convention stipulates that each country may take legislative measures that allow
for the grant of compulsory licenses “to prevent the abuses which might result from the
exercise of the exclusive rights conferred by the patent, for example, failure to work”. As
failure to work is clearly stipulated as only an example, the Paris Convention allows Member
States to grant compulsory licenses on many other grounds as well.11 Recently, it has been
reconfirmed that the compulsory license mechanism can be invoked to address in particular
7
Yahong Li, Intellectual Property and Public Health: Two Sides of the Same Coin 6 ASIAN J. WTO & INT'L
HEALTH L & POL'Y 389,408 (2011)
8
Obligations and exceptions: TRIPS and Pharmaceutical Patents WORLD TRADE ORGANISATION available
at http://www.wto.org/english/tratop_e/trips_e/factsheet_pharm02_e.html
9
International Review of Intellectual Property and Competition Law from IIC 2011, 42(1), 4-40
10
Pooja Van Dyck, Importing Western Style, Exporting Tragedy: Changes in Indian Patent Law and Their
Impact on AIDS Treatment in Africa 6 NW. J. TECH & INTELL. PROP. 138, 145 (2007-08)
11
Paris Convention (1967) https://www.wto.org/english/tratop_e/dispu_e/repertory_e/p2_e.html
11
Paris Convention for the Protection of Industrial Property http://www.wipo.int/treaties/en/ip/paris/
the potentially hindering effects of patents on public health.12So as in the present case the
JDUK is not able to provide teeth Aligners according to the demands of the public. Hence
compulsory lisence should be granted.
13
It is submitted that in the case of Eli Lilly & Co. v. S & U Chemicals Ltd The Supreme
Court noted that “the legislative policy behind compulsory licensing, namely, is to avoid any
practical monopoly of the manufacture of drugs by patented processes and to foster
competition”. Hence legislation should be applied in every places where Public in general is
benefitted. Article 84 (1) of patent act says that after the expiration of 3 years of the grant of
patent, any company can make an application to the Controller for grant of compulsory
licence on patent on ony of the three grounds14. i.e.
[a] ‘Public requirement’ not been satisfied.
[b] invention ‘not available to public at affordable price’.
[c] it is not worked in the territory of the nation.
And in many places lisence has been granted by just looking at the law of the land. Same had
15
happened in the case of Regina V. Comptroller-General Of Patents And Designs which
was decided by 3judge bench and in Zanetti-Streccia v Raydyot Ltd16.Hence the compulsory
license should be granted to Cinton because JDUK is not able to satisfy the Product to
Public[a], and its product is not available at a reasonable price[b]. It will be proved in the
following points.
3.2 THAT THE PATENTED TEETH ALIGNER IS NOT AVAILABLE TO THE

PUBLIC AT LARGE.
It is humbly submitted that it is rightly said that The public interest needs to be balanced with
individuals' rights, and it is the responsibility of the courts or administration in each
respective country to determine this17 hence compulsory licenses may be appropriate if the
13
Eli Lilly & Co. v. S & U Chemicals Ltd 26 C.P.R. (2d) 141
14
Sections In Indian Patent Act, 1970 http://www.wipo.int/edocs/lexdocs/laws/en/in/in065en.pdf
15
Regina v. COMPTROLLER-GENERAL OF PATENTS AND DESIGNS [1953] 2 Q.B. 48
16
Zanetti-Streccia v Raydyot Ltd [1972] F.S.R. 507
17
Correa, Carlos M. “Intellectual Property Rights and the.” Trade Related Agenda Development and
Equity (1999): 3
public benefits of increased use of the patented invention outweigh the long term public costs
of reduced disclosure and innovation; and the public interest in expanded working of the
patented invention outweigh the patentee’s private interests. In the case of public benefits the
patentee’s consent is not required18 , it is also submitted that section 84[1][a] satisfies the
condition to grant the licence to the Cinton because there was a huge demand(50 lakh units)
of the Product and due to import restriction the JDUK is not able to fulfill the demands of the
public. The demand for the productr was around 50 lak units but the company was only able
to provide 2 lakh units which is nothing as compared to the huge demands. Also according to
clause 7(e) of section 84 “the reasonable requirements of the public shall be deemed not to
have been satisfied, if the working of the patented invention in the territory of India on a
commercial scale is being prevented or hindered by the importation from abroad of the
patented article”.
Also The code of federal Regulations of US says that “patent by its very nature is affected
with the Public Interest”19, public interest must be kept in mind deciding compulsory licence
cases and in the case of Hoffmann-La Roche Ltd v. L.D. Craig Ltd20 the Supreme Court of
Canada affirmed, ”In my view, No absolute monopoly can be obtained in a process for the
production of food or medicine” it is also to be stated that countries with limited industrial
development could consider a compulsory patent to develop its national industries as for
public interest.21 Hence the license should be granted to the company of Cinton.
3.3 THAT THE PRODUCT OF JDUK IS NOT AVAILABLE IN AN AFFORDABLE

PRICE.
It is submitted that in the report on the revision of Patents Law by Shri Justice N Rajagopala
Ayyangar it was observed that “Patent rights were created “not in the interest of the inventor,
but in the interest of national economy”22 selling the goods at a very high price will adversely
18
Reichman, J. and Hasenzhal, C. “Non-voluntary licensing of patented inventions. Historical perspective, legal
framework under TRIPS, and an overview of the practice in Canada and the USA” (2003), ICTSD Programme
on IPRs and Sustainable Development Issue paper no. 5 at 10.
19
Code of Federal Regulations - US Government Publishing Office
https://www.gpo.gov/fdsys/browse/collectionCfr.action?collectionCode=CFR
20
Hoffmann-La Roche Ltd v. L.D. Craig Ltd (1967) 48 C.P.R. 137
21
Fauver, Cole M. “Compulsory Patent Licensing in the United States: An Idea Whose Time Has
Come.”Northwestern Journal of International Law and Business 8.3 (1988): 666–685. Print. p67118
22
report on the revision of Patents Law by Shri Justice N Rajagopala Ayyangar https://spicyip.com/wp-
content/uploads/2013/10/ayyangar_committee_report.pdf
affect the common people and all the money will go to the company in UK, so it will
definitely affect the national economy. Also in the case of Bristol-Myers Squibb Co. v.
Canada 23
”, the Supreme Court of Canada described the compulsory licensing scheme as
reflecting Parliament’s policy “to favor health cost savings over the protection of intellectual
property” and In the present case JDUK is selling its product in the country at a very
expensive rate i.e. Rs. 4lakhs for one piece that is not affordable to the general public.
On the other hand Cinton is manufacturing the same piece at Rs. 40 thousands and can sell it
at a much lower amount of money than the JDUK is selling. In the case of Pharmon B v
Hoechst AG24 court observed that “the purpose of the provision was that the products
concerned should be available to the public at the lowest prices consistent with the patentee's
deriving reasonable profits from his patent. Hence if the same product can be manufactured at
40,000 rupees, selling it at a high price of 4 lakhs cannot said to be reasonable.
It is now essential to mention the case which has almost the same facts as the present case.
The name of the case is Bayer Corporation v Union of India 25 in the case Bayer Corporation,
USA (“Bayer”) had developed Sorafenib Tosyalte (“the Drug”), marketed as Nexavar. The
drug is a life extending drug which is used for treating patients suffering from advanced
stages of kidney cancer and liver cancer. Bayer was granted a patent for the Drug in India in
March 2008. In December 6, 2010, Natco Pharma Ltd (“Natco”) approached Bayer for grant
of a voluntary licence. Bayer in a response dated December 27, 2010 rejected Natco’s request
for grant of voluntary license, After the expiration of three years from the date of grant of the
Indian patent to the Drug, Natco applied to the Controller General of Patents for a
compulsory license under Section 84 (1) of the Patents Act 1970 proposing to manufacture
and sell the drug at a price of Rs.8800/- per month of therapy, as against the price of
Rs.2,80,428/- per month of therapy charged by the petitioner. In March 2012, the Controller
granted the first Compulsory License to Nacto to manufacture and sell the drug.
Thereafter, Bayer filed an appeal challenging the order of the Controller before the
Intellectual Property Appellate Board. The IPAB, in March 2013, dismissed the appeal and
upheld the decision of the Controller.
23
Bristol-Myers Squibb Co. v. Canada (2005) 82 CPR (3d) 192
24
Pharmon B. v. v. Hoechst AG [1986] F.S.R. 108
25
Bayer Corporation v Union of India SLP No 30145 of 2014
Bayer challenged IPAB’s order before the High Court of Bombay by way of a writ
petition. The HC examined the relevant provisions of the Act and upheld IPAB’s Order. After
that Bayer Corporation challenged the decision in Supreme Court, the Supreme Court of
India refused to entertain Bayer’s appeal, and dismissed the Bayer’s Special Leave Petition. It
is also noted that in the order granting the CL, the Patent Controller had noted that as against
the demand of 8842 patients in the year 2011, Bayer had supplied the drug to less than 200
patients after more than three years of the grant of the patent. Hence in this case both the
things has happened as happening in the present case-(i) The supply of the product is not able
to fulfill the demands of the public. And (ii) petitioner is charging a very high amount of
money and the same product can be available in much cheaper price by granting the license.
Therefore this case is binding on the present case because It was also upheld by Supreme
Court of India and the facts are also exactly the same. Also In the Extrude Home
Corporation's Patent 26case almost same things happened The patentees were a U.S.
corporation distributing their products in the U.K, and the license was granted to the company
of UK.

OF THE JDD?
It is humbly contended before this Hon’ble High Court that the product of Cinton Tech Pvt.
Ltd (Cinton), (ORTHODENTA), is not at all infringing the trademark of the Johnson Dentals
Dravida ‘s (JDD) product OTHODENT in accordance with the Trade Mark Act,1999 [4.1],
because the logos have apparent distinction between them [4.2] and that there were no
intentions to infringe the trademark [4.3].
26
Extrude Home Corporation's Patent 1982] R.P.C. 361
4.1 THE TRADE MARKS ACT, 1999 IN INDIA
It is humbly submitted that a trademark is any sign that individualizes the goods of a given
enterprise and distinguishes them from goods of its competitors 27. The owner of the mark
can prevent the use of similar or identical signs by competitors if such marks can lead to
confusion28. According to Section 2 (zb) of the Trade Marks Act, 1999,
"trade mark means a mark capable of being represented graphically and which is capable of
distinguishing the goods or services of one person from those of others and may include
shape of goods, their packaging and combination of colours."
A mark can include a device, brand, heading, label, ticket, name, signature, word, letter,
numeral, shape of goods, packaging or combination of colors or any such combinations. It is
said that a trademark is a valuable business asset and a marketing tool which could help in
financing of the business in a way. But it is also submitted that the owner of a registered
trademark can also try to sue other companies to destabilize their business and make
profits of their interest.
It is also submitted that Cinton had issued the patent on its teeth aligners named as
ORTHODENTA in 2007, much before that the JDUK which registered its trademark in the
year 2009. And the company is using this name before even the existence of the patent of
OTHODENT. Hence the company JDUK cannot claim that Cinton has infringed their
trademark. In the case of Altab Hussain V Howrah Super Biri29 the court held that the
Defendant is manufacturing its product since 1 Jan, 1995 and the plaintiff claims to be
manufacturing since 25august, 1995. Hence suit was dismissed. The same should happen in
the present case.
It is submitted that the company Cinton is specialized in orthodontic appliances. The main
purpose of putting the name ORTHODENTA is because of the word Orthodontics which
according to the oxford dictionary means “The treatment of irregularities in the teeth and
jaws”. Hence if the company is making a product configured to be placed on the patient’s
27
Introduction to Intellectual Property-theory and practice(Kluwer Law International,1997)pg184
28
Trade Related Aspects on Intellectual Property Rights(TRIPS) Article 16
29
Altab hussain v howrah super biri no. 202 2001 PTC 852 (del)
teeth and to incrementally reposition the teeth for the patient’ benefit, then a name resembling
to the word Orthodontics should be best chosen by any dental companies. The same has been
done by the Cinton Company.
That in the case of Standard Electricals Limited v Rocket Electricals and Another30 Plaintiff
was using the word STANDARD as its trade mark in relation to electrical equipment -
defendant, on the other hand, is selling its own products under the mark MAX STANDARD
and MS STANDARD, except the word STANDARD, no constructive and visual
resemblance between the two were there and it was held that the defendant's goods sold
under MAX STANDARD/MS STANDARD have not caused any monetary loss or injury to
the reputation of the plaintiff and there is no deception on the part of defendant and the public
cannot get confused by this. Also in the case of National Bell Company and another v
Metal Goods Manufacturing Company Private Limited and Another31 , same fact appeared.
In the same way Both OTHODENT and ORTHODENTA has words DENT and DENTA
which are phonically different from each other. Hence the customers who will try to buy
these product will never get confused.
It is necessary to mention that Niamat Ullah J. in Thomas Bear and Sons Ltd v Pravag
Narain32, observed that
“in the judging of the probability of deception, the test is not whether the ignorant the
thoughtless, or the incautious purchaser is likely to be misled, but we
have to consider the average purchaser buying with ordinary caution.”
Also in the case of Johnsons & Johnsons & Another v Cripteen Hoden India Pvt. Ltd &
Another33 plaintiff’ trademark was Stayfree and defendant along with the word "Beltless"
have used words 'STAYFREE' on its packing, and the color scheme and other essential
features are altogether different and it was held by the Court that there is no likelihood of
deception or confusion to ultimate customer, namely, literate or semi-literate ladies, every
Customer will be able to distinguish between the two marks and the Appeal was dismissed.
30
Standard Electricals Limited v Rocket Electricals and Another 2004 (28) PTC 26
31
National Bell Company and another v Metal Goods Manufacturing Company Private Limited and Another
AIR 1971 SC 898
32
Niamat Ullah J. in Thomas Bear and Sons Ltd v Pravag Narain AIR 1935 All 7
33
Johnsons & Johnsons & Another v Cripteen Hoden India Pvt. Ltd & Another AIR 1988 DEL 249
It is also submitted that section 30 of the Trade Marks Act, 1999 speaks of the “Limits on
effect of registered trade mark”. Clause 2(a) of section 30 states that a registered trademark
is not infringed where “the use in relation to goods or services indicates the kind, quality,
quantity, intended purpose, value, geographical origin, the time of production of goods or of
rendering of services or other characteristics of goods or services”. Hence in the present case
JDD cannot claim that their trademark is infringed as the word(logo), “ORTHODENT” is
used in relation to goods that indicates the kind. i.e. Orthodent indicates the word
Orthodontics, which indicates that it is a dental treatment and will help to fix the patient's
teeth and set them in the right place.
4.2 THAT THE TWO LOGOS HAVE APPARENT DISTINCTION BETWEEN

THEM.
It is humbly submitted that two logo has many differences between them which are as
follows:
1. The Colour Of The Two Logos- There is a huge difference between the colors of the
logos of ORTHODENT AND OTHODENT, as in the JDUK’s product the color of
half of the Word(OTHO) is RED, and the rest of the word(DENT) is BLUE. So if
anybody would see the logo, in the first sight they will realize the difference between
the two.
2. The Main Symbolic Word- Both the words are quite different, as the Product of
Cinton contains the letters R in the second position of the logo and it also contains the
letter A in the End of the logo. But the logo of JDUK lacks these two words. Hence
both the words are quite different in Apperence as well as in phonetic representation.
3. The Length of the Logo- it is also submitted that due to the difference of the two
words that are present in Cinton’s product, the general length of the logo also got
changed. And it can easily be noticed and distinguished by the common peoples. So it
is clear that both logos are visually different.
4. Writing style of both the logos- By looking at the logos it can easily be seen that in
Cinton’s product all the letters are have a different writing style as compared to the
JDUK’s product. The letter H,O,D,E and N have totally different Fonts. And also all
the letters of JDUK’s OTHODENT are wider in font as compared to the
ORTHODENTA.
It is submitted that in the case of Samsonite Corporation v Vijay Sales34 the court arrived
at a conclusion that the plaintiffs had not established any distinctive trade dress at all and
that the color, shape and other features referred to by the plaintiff are quite common. It
was further held that by merely looking at the products of the plaintiff and the defendant,
it was possible to easily distinguish the same and that the colour alone could not be the
sole factor for arriving at a conclusion of passing off in favour of the plaintiff. In the facts
of the case, the court had declined the prayer for injunction. Hence in the present case
even if half of the logo ORTHODENTA has the same color as of the JDUK’s product, it
cannot be said that trademark can be infringed, as according to the cited case, color could
not be the factor for arriving at a conclusion of passing off in favor of the plaintiff.
34
Samsonite Corporation v Vijay Sales 1998 PTC (18) 372
As in the case of James Chadwick & Bros. Ltd. v The National Sewing Thread Co.
Ltd35, CJ Changla and Justice Bhagwati said;
“The real question is as to how a purchaser who must be looked upon as an average man
of ordinary intelligence, would react to a particular trademark, what association he
would form by looking at the trademark, and in what respect he would connect the trade
mark with the goods which he would be purchasing. It is impossible to accept that a man
looking at a trade mark would take in every single feature of the trademark. The question
would be, what would he normally retain in his mind after looking, at the trade mark?”
So in this case it is pretty much clear that if any person looks at the logo of the two
companies, he will surely retain in his mind that both logos are different in color.
Hence ,firstly, it is to be noted that the division bench also said that the persons who
would be deceived by the resemblance are the purchasers of the goods and their being
deceived has to be the subject matter of consideration. The resemblance may be phonetic,
visual or in the basic idea represented in the plaintiffs mark. So if the logos are
phonetically different than the general public would not get confused.
In the case of United Breweries Ltd V Khodays Brewing & Distilling Industries
Ltd36plaintiff had registered mark “KALYANI BLACK LABEL” and defendant was sell its
product by the name of “HERCULES BLACK LABEL SUPER STRONG BEER’, the court
held that that there is no deceptively similarity found on the basis of which the
customers can get confused.
Also in the case of Sun Pharmaceutical Industries Ltd v Anglo French Drugs and
Industries Ltd37 , decided by the High Court of Delhi, The plaintiff was a pharmaceutical
company which had registered a trademark on its product called OXETOL, the
respondent had in turn adopted the trademark EXITOL. It was held that the respondent
had honestly adopted the mark EXITOL for treatment of constipation since it Contains
the salt namely LACTITOL and there is difference in the mark of the appellant and that
of the defendant. It was also held that It cannot lead to the conclusion that any slight
semblance of phonetic similarity between two marks would automatically satisfy the test
of confusion to a man of average intelligence having imperfect recollection. Hence it is
35
James Chadwick & Bros. Ltd. v The National Sewing Thread Co. Ltd AIR 1951 Bom147
36
United breweries ltd v khodays brewing & Distilling Industries LTd 2003 (26) PTC 130
37
Sun Pharmaceutical Industries Ltd v Anglo French Drugs and Industries Ltd 2015(63)PTC580
clear from the above case that as EXITOL was named after the salt name (LACTITOL),
which it contains, Cinton can also name its product on the basis of the word Orthodontics
(fixing the patient's teeth and setting them in the right place), which it do.
Also in In the case of Skyline Edu Institute V S. L. Vaswani38, The Appellant, Skyline
Education Institute, was a company imparting education and training to individuals in all
disciplines of education. And the Respondent established an institution named ‘Skyline
Institute of Engineering and Technology Appellant filed a civil suit against the
Respondents using the word “Skyline” seeking injunction against passing off. The
Supreme Court observed that the only ground on which the Appellant sought temporary
injunction against the Respondents was that the word ‘Skyline’ is a specific/distinct word
and being a prior user, it was entitled to seek a restraint against the Respondents. The
same was rejected by the Supreme Court by observing that there are many companies
using word `Skyline’ as part of their nomenclature and therefore it is not possible to agree
with the learned counsel for the Appellant that the Skyline is not a generic word but is a
specific word and his client has right to use that word to the exclusion of others. Hence in
the present case the word ORTHODENTICS is also a generic word which can be used by
any teeth aligner company.
Also in the case of Kellog Company v Praveen Kumar Bhadabhai39, It was noticed that
the plaintiff had displayed the word Kellogs in bold letters on its carton in such a manner
which could not escape notice by any buyer. The court noticed that the purchasers of the
products of the parties belong to the middle class or the upper middle class and above
who were fairly educated in English and are able to distinguish Kellogs and what is not
Kellogs. The court came to a conclusion that viewed as a whole, the trade dress, that is
the packaging of the parties, was different and there was no possibility of confusion
amongst the class of purchasers of the cornflakes being sold by the parties. On these
principles, injunction was refused to the plaintiff. Injuction was also refused to the
plaintiff in the case of Cadbury India Limited v S. M. Dyechem Limited40 which was
decided by the Gujrat High Court, whose facts were almost same as the case mentioned.
38
Skyline Edu Institute V S L Vaswani 2003 (27) PTC 37
39
Kellog Company v Praveen Kumar Bhadabhai 1996 PTC 16 187
40
Cadbury India Limited v S. M. Dyechem Limited 1999 (19) PTC 617
The same are the facts in the present cases mentioned in the 4th difference; both the logos
are written in different styles and can be distinguished by the people of average
intelligence. Hence it is clear that both the logos are different form each other and the
allegation of infringement of trademark should be removed.
Also in the case of Ramchandar Laxminarayan Karva V Jagannath Khubchand

Karava41the Judge had adopted the rule of comparison to find out the degree of
dissimilarity and came to the conclusion that there are differences between the logos of
both parties and these dissimilarities would enable the purchaser of the commodity to
identify the goods of the appellant as well as respondents.
4.3 THAT THERE WAS NO INTENTION TO INFRINGE THE TRADEMARK.
It is humbly submitted that there was no intention on the part of Cinton to infringe the
trademark of the JDUK. As it is clear that the company of Cinton had issued patent on its
teeth aligners called ORTHODENTA in 2007. But JDUK had registered its product
“OTHODENT” in the year 2009. So Cinton can’t infringe a trademark which was not
even existed at that time (2 years before).
It is important to Cite the case of Schweppes Ltd v Gibbens 42 in which the appellant was
selling soda water in bottles. The respondent subsequently sold soda water in bottles with
label which was somewhat similar to that of the appellant. However, while the appellant's
bottles showed ‘Schweppes Soda Water’ the respondents contained the name ‘Gibbens
Soda Water’. In this case, it was held by the House of Lords that a fraudulent intent on the
part of the respondent cannot be presumed in spite of the similarities in the bottles, labels,
color and medallion. Consequently the court held that there was no intention to deceive.
House of lords also said that “whether in selling the bottle a person is likely to be
deceived by the resemblance of the one thing to the other; and if a person is so careless
that he does not look, and does not read the label fairly” but takes the bottle without
sufficient consideration and without reading what is written very plainly indeed upon the
face of the label on which the trader has placed his own name, then you certainly cannot
say he is deceived”. The same thing happened in the case of Tata Sons Limited V
41
Ramchandar laxminarayan karva v jagannath khubchand karva 2003 (26) PTC 522
42
Schweppes Ltd v Gibbens 1905 (22) RPC 601
Greenpeace International And Another43.This guidance has been followed and applied
ever since in cases including in: J.B Williams Co v H. Bronnley & Co.Ltd 44 , Jones
Brothers Ltd v Anglo-American Optical Co45, Smith's Potato Crisps Ltd. v Paige Potato
Crisps Ltd46 and John Haig & Co. Ltd v Forth Blending Co. Ltd.47
Also in the case of Boehringer Ingelheim Ltd V Vetplus Ltd48 where both Claimants and
Defendant both were in a business of producing nutritional supplements for animals.
where it was stated that an interim injunction would not be awarded against the
defendant, even though the latter was involved in comparative advertisement which put
the plaintiff’s logo in bad light, The ratio behind this judgment was on similar lines as
the Bonnard V Perryman49, where too it was decided that until and unless the plaintiff
can prove that it was certain that at a full trail the plaintiff’s claim for a permanent
injunction would be successful. So in the present case the JDUK have to prove that there
is some similarity between the two logos, which is not possible as both the logos are
phonetically and visually different and can be easily distinguished by the man of average
intelligence.
In the case of Schering Corporation v. Alkem Laboratories50and Schering Corporation

51
& Ors v. Getwell Life Sciences India Pvt. Ltd. in both the cases Appellants filed two
suits seeking permanent injunction to restrain infringement of registered trademarks
against respondents, Appellants filed for TEMODAL as their Trademark for
TEMOZOLOMIDE based drug Appellants claimed respondent was marketing and selling
almost identically positioned drug under mark TEMOKEM - Such was phonetically,
linguistically, textually, visibly, manifestly, confusingly and deceptively similar to marks
TEMODAL/TEMODAR. It was held by the court that there is a huge difference of the
price between the two products and also Trademarks of respondents could not be said to
43
Tata Sons Limited v Greenpeace International and another 2011 (45) PTC 275
44
J.B Williams Co v H. Bronnley & Co.Ltd 1909) 26 R.P.C 765
45
Jones Brothers Ltd v Anglo-American Optical Co. (1912) 29 R.P.C 361
46
Smith's Potato Crisps Ltd. v Paige Potato Crisps Ltd (1928) 45 R.P.C 132
47
John Haig & Co. Ltd v Forth Blending Co. Ltd. (1953) 70 R.P.C 259
48
Boehringer ingelheim ltd V vetPlus LTD (2007) 97 BMLR 1
49
BONNARD V PERRYMAN (1891) 2 Ch 269
50
Schering Corporation v. Alkem Laboratories 2010 (42) PTC 772
51
Schering Corporation & Ors v. Getwell Life Sciences India Pvt. Ltd. 2008 (37) PTC 487
be either phonetically or visually or in any manner deceptively similar to trademarks of

appellants. It is also necessary to mention here that also in the present case there is huge
difference between the products of the two companies. i.e. OTHODENT is Rs. 400,000
per unit on the other hand ORTHODENTA is sold at Rs.40,000 per unit. Hence both these
cases are almost similar to the present case. And suit for injunction should be dismissed.
5. WHETHER THE IMPORTATION OF DATA FALL WITHIN THE

PURVIEW OF THE INFORMATION TECHNOLOGY ACT, 2000 (2008)?
It is humbly contended before the Honorable High Court that importation of data does not
fall within the purview of Information Technology Act, 2000. Post amendment by Act 10 of
2009 for Section 252 which defines the Information Technology Act, 2000 states that
“electronic record” means data, record or data generated, image or sound stored, received or
sent in an electronic form or micro film or computer generated micro fiche. As per the stated
definition, the digital models of patient’s teeth sent and received do not come under the ambit
of electronic record.
As per Section 11 of Information Technology Act, 2000 53, i.e. Attribution of electronic
records -
An electronic record shall be attributed to the originator—
(a) if it was sent by the originator himself;
(b) by a person who had the authority to act on behalf of the originator in respect of that
electronic record; or
52
http://ijlt.in/wp-content/uploads/2015/09/Information-Technology-Act-as-amended-in-2008.pdf
53
http://www.dot.gov.in/sites/default/files/itbill2000_0.pdf
(c) by an information system programmed by or on behalf of the originator to operate

automatically.
JDUK had its subsidiary company JDD in Dravida which was authorised to carry out the
activities in the country. As per this, the electronic models of teeths were attributed to JDD
and similarly the patient’s teeth models were attributed to JDUK.
In Vodafone International Holdings v Union Of India & Anr54, it was held by Supreme
Court that on transfer of shares of a foreign company to a non-resident offshore, there is no
transfer of shares of the Indian Company, though held by the foreign company, in such a case
it cannot be contended that the transfer of shares of the foreign holding company, results in
an extinguishment of the foreign company control of the Indian company and it also does not
constitute an extinguishment and transfer of an asset situate in India. Transfer of the foreign
holding company's share offshore, cannot result in an extinguishment of the holding company
right of control of the Indian company nor can it be stated that the same constitutes
extinguishment and transfer of an asset/ management and control of property situated in
India.This clearly states that importation of data from a foreign country to a subsidiary
company would not fall under the purview of Information Technology Act, 2000 by
Section 11 of IT Act55.
As per Section 8 of Information Technology(Amendment) Act, 2008, i.e. Insertion of new

Section 7-A56 -Audit of documents, etc., maintained in electronic form.—Where in any law
for the time being in force, there is a provision for audit of documents, records or
information, that provision shall also be applicable for audit of documents, records or
information processed and maintained in the electronic form.
It is clearly specified in the Information Technology(Amended) Act, 2008 that importation of

data from foreign country to subsidiary company would not come under the ambit of
Information Technology Act. Therefore the counterclaim by Cinton against JDD on the
ground that the accused “articles” upon which the jurisdiction was based, were transmissions
of the digital data sets from the UK to the India and hence not patentable was true.
54
S.L.P. (C) No. 26529 of 2010
55
Journal of Cases on Information Technology, 2012, p 549
56
http://meity.gov.in/sites/upload_files/dit/files/downloads/itact2000/it_amendment_act2008.pdf
PRAYER
Therefore, in the light of issues involved, arguments advanced, reasons given and the
authorities cited, this Hon’ble Court may be pleased:
a) To held that the petitioner doesn’t have patentable product to sell in India and patent
of the petitioner is revoked upon the jurisdiction of the articles.
b) To grant the compulsory license to respondent, in accordance with the law.
c) To held that the product of the respondent doesn’t infringe the trademark of the
petitioner and the respondent can’t be held liable and compensate for the same.
And pass any other order in favour of Respondent that it may deem fit in the interest of
justice, equity and good conscience.
For This Act of Kindness, the Respondent Shall Duty Bound Forever Pray.
Sd/-
(Counsels for the Respondent)

Defendent

Încărcat de

Informații document

Drepturi de autor

Formate disponibile

Partajați acest document

Partajați sau inserați document

Opțiuni de partajare

Vi se pare util acest document?

Este necorespunzător acest conținut?

Drepturi de autor:

Formate disponibile

Defendent

Încărcat de

Drepturi de autor:

Formate disponibile

PARTICIPANT CODE: TL-13

IInd TECHNOLEGAL NATIONAL MOOT COURT COMPETITION, 2017.

UNDER ORDER VIII RULE 6A OF CODE OF CRIMINAL PROCEDURE,1908

JOHNSON DENTALS DRAVIDA PVT. LTD ………………..……...….PETITIONER

CINTON TECH PVT. LTD…………...……………………...………….RESPONDENT

ON SUBMISSION TO THE HIGH COURT OF DELHI

WRITTEN SUBMISSION ON BEHALF OF THE RESPONDENT

- CINTON TECH PVT. LTD

J.D.U.K Johnson Dentals United Limited

JOHNSON DENTALS DRAVIDA PVT. LTD V. CINTON TECH PVT. LTD

II. Johnson Dentals United Kingdom (JDUK), a dental company incorporated in

1. WHETHER THE DIGITAL DATA TRANSMITTED FROM THE UK TO THE

2. WHETHER THE PATENT OF JDD BE REVOKED BY THE COUNTERCLAIM

3. WHETHER A COMPULSORY LICENSE CAN BE GRANTED TO CINTON?

4. WHETHER THE PRODUCT OF THE CINTON INFRINGES THE TRADEMARK

5. WHETHER THE IMPORTATION OF DATA FALL WITHIN THE PURVIEW OF

1. WHETHER THE DIGITAL DATA TRANSMITTED FROM THE UK TO THE

2. WHETHER THE PATENT OF JDD BE REVOKED BY THE COUNTERCLAIM

3. WHETHER A COMPULSORY LICENSE CAN BE GRANTED TO CINTON?

4. WHETHER THE PRODUCT OF THE CINTON INFRINGES THE TRADEMARK

5. WHETHER THE IMPORTATION OF DATA FALL WITHIN THE PURVIEW OF

1. WHETHER THE DIGITAL DATA TRANSMITTED FROM THE UK TO THE

1.1 THAT THE TERM “PROPERTY IN CYBERSPACE” REFERS TO ALL THE

1.2 THAT THE PETITIONER HAS NO AUTHORITY TO IMPORT TO PRODUCT

That in case of Clearcorrect Operating, Llc V. International Trade Commission3 where

1.2.1 THAT THE IMPORTATION OF DIGITAL DATA IS A PATENTED

(1) In Patent Act, unless the context otherwise requires,

(i) art, process, method or manner of manufacture;

(o) "patented article" and "patented process" mean respectively an article or

2. WHETHER THE PATENT OF JDD BE REVOKED BY THE COUNTERCLAIM

2.2 THAT THE DECISION CAN’T REST ON THE LITERAL INTERPRETATION

It is humbly submitted before the Honorable High Court that in R. M. D. Chambarbaugwala

2.4 THAT THE PETITIONER IS NOT DULY AUTHORIZED BY THE LAW TO

3. WHETHER A COMPULSORY LICENSE CAN BE GRANTED TO CINTON?

It is humbly submitted that a compulsory license is a license granted by the government

[a] ‘Public requirement’ not been satisfied.

[b] invention ‘not available to public at affordable price’.

[c] it is not worked in the territory of the nation.

3.2 THAT THE PATENTED TEETH ALIGNER IS NOT AVAILABLE TO THE

3.3 THAT THE PRODUCT OF JDUK IS NOT AVAILABLE IN AN AFFORDABLE

4. WHETHER THE PRODUCT OF THE CINTON INFRINGES THE TRADEMARK

intentions to infringe the trademark [4.3].

4.1 THE TRADE MARKS ACT, 1999 IN INDIA

4.2 THAT THE TWO LOGOS HAVE APPARENT DISTINCTION BETWEEN

Also in the case of Ramchandar Laxminarayan Karva V Jagannath Khubchand

4.3 THAT THERE WAS NO INTENTION TO INFRINGE THE TRADEMARK.

In the case of Schering Corporation v. Alkem Laboratories50and Schering Corporation

be either phonetically or visually or in any manner deceptively similar to trademarks of

5. WHETHER THE IMPORTATION OF DATA FALL WITHIN THE

An electronic record shall be attributed to the originator—

(a) if it was sent by the originator himself;

(c) by an information system programmed by or on behalf of the originator to operate

As per Section 8 of Information Technology(Amendment) Act, 2008, i.e. Insertion of new

It is clearly specified in the Information Technology(Amended) Act, 2008 that importation of

(Counsels for the Respondent)

S-ar putea să vă placă și