Himachal Pradesh (HP) High Court recently refused to grant the interim injunction because the invention was known since ages (i.e. traditional knowledge). It was correct to upheld the single Judge finding that Patent law and Trademarks are two different legal regime and the principles of one cannot be applied to another. According to me, in this beautifully crafted judgment there are two flaws:
- The Hon’ble Judges visually compared the products and stated that A visual comparison of the three items prima facie establishes that the articles manufactured by the plaintiffs and the defendant are virtual copies of the traditional Kilta. In my opinion, this is not correct approach as while judging the patentability or infringement, one must look the claims of the Patent and not the product made out of that Patent.
- Hon’ble Court relied on American Cyanamid v Ethicon [1975] 1 All E.R 504 for the principles of interim injunction but this judgment is not a good law in India as it has been diluted by Supreme Court in Colgate Palmolive and Gujarat Bottling cases.
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