Standard for granting injunctions clarified

In Dr Reckeweg and Co GmbH v Adven Biotech Pvt Ltd (IA 7326/2007 CS (OS) 1189/2007, July 1 2008), the Delhi High Court has clarified the standard to be adopted by the courts in deciding whether to grant an injunction in cases involving trademark and copyright infringement. The decision further splinters the prevalent ‘sweat of the brow’ test for determining subsistence of copyright in a literary work.

Dr Reckeweg and Co GmbH, a German-based company, claimed to have been manufacturing homeopathic products known as the 'R-Series' in Germany for the past 60 years and to have sold such products in India since 1980. Reckeweg filed suit against Adven Biotech Pvt Ltd, alleging passing off and infringement of copyright in respect of identification numbers and catalogues for homeopathic medicines prepared following the German Homeopathic Pharmacopoeia.

 

Reckeweg's medicines were numbered from R-1 to R-95. Reckeweg claimed that the letter 'R' was derived from the name of Dr Reckeweg, its founder, and that the numerals indicated the characteristics of the medicinal formulations. Adven's medicines bore the alphanumeric series A-1 to A-75. Reckeweg alleged that Adven's use of the same numerals with regard to the same ailment was a calculated attempt to cash in on its goodwill. Reckeweg thus sought an order restraining Adven from:

Reckeweg's claims for passing off and copyright infringement were rejected by the court. With regard to passing off, the court pointed out that an injunction will be granted only if the marks are identical or deceptively similar, so as to cause confusion among the public. In the present case, the court held that there was no likelihood of confusion between the parties' alphanumeric marks because:

 

In addition, the court rejected Reckeweg's copyright claim on the following grounds: 

The court relied on the Supreme Court decision in Eastern Book Company v DB Modak [(2008) 1 SCC 1], in which the court considered whether a publication reporting Supreme Court judgments was copyrightable. The Supreme Court held that the skill, labour and time expended (known as the 'sweat of the brow' test) were not determinative; the work must be original by virtue of selection, coordination or arrangement of pre-existing data, Therefore, a derivative work must be somewhat different in character from that produced by the author.

In the case at hand, the court examined the separate parts of the work rather than the work as a whole. The court held that Reckeweg's literature was a compilation of elements which were not individually capable of protection under copyright law. The decision highlights the fact that a work must be complex in order to be granted copyright protection. The compilation of commonplace elements does not result in an original work. 

 

It will be interesting to see whether the decision is appealed, especially since, in an earlier decision (Dr Reckeweg and Co GmbH v SM Sharma), it was held that Reckeweg's literature (considered as a whole and not in parts) was capable of copyright protection.