INDIA Law and Practice Contributed by: Safir Anand and Twinky Rampal, Anand and Anand Advocates
Digital licensing models • Licensing over ownership: Digital content, such as e-books, software, movies and music, is often provided under licensing agreements rather than outright sale. End-user licence agreements (EULAs) and terms of service commonly restrict resale, sharing or distribution of licensed digital content. For example, when purchasing an e-book or digital music, the buyer typically acquires a licence to use the content rather than ownership of the copy - righted material. • No exhaustion of rights: Licensing agreements prevent the application of the first-sale doctrine to digital content. This ensures that copyright holders retain control over the subsequent distribution of digital goods. Digital content resale limitations • No resale of digital goods: Unlike physical copies, digital goods (eg, software, movies or music) can - not typically be resold due to restrictions imposed by licensing agreements and digital rights manage - ment (DRM) technologies. • Impact of DRM technologies: DRM technologies enforce restrictions on the sharing, copying or transfer of digital content, making resale impracti - cal and often illegal under licensing agreements. Summary • Physical copies: The doctrine of first sale applies to physical goods, allowing lawful resale or redistribu - tion of copyrighted works after the first sale. • Digital content: The doctrine of first sale does not extend to digital goods. Licensing agreements and DRM technologies ensure that copyright owners retain control over digital content, restricting resale or redistribution.
• an Anton Piller order; • a John Doe order;
• a permanent or perpetual injunction; • damages or accounts of profits; and • delivery up and destruction.
Preliminary or temporary relief is available and is fre - quently requested in trade mark infringement lawsuits. The Code of Civil Procedure (1908) makes it easier to file an application for an injunction prohibiting a defendant from using a mark that infringes on a claim - ant’s rights, for example. A claimant must show: • a prima facie case; • irreparable harm and injury to its activities in order to obtain a preliminary or temporary injunction (goodwill, market share, etc) – the injury must be severe enough that monetary compensation from the defendant would not be enough to compensate the victim; and • the balance of convenience dictates that issuing an injunction is more equitable than refusing to do so. The following are defences available to those accused of infringement: • delay and laches; • acquiescence; Acquiescence may be considered a form of delay, although it has a more active element of knowledge of third-party rights coupled with delay. 10.2 Monetary Remedies Various factors are used to evaluate and provide mon - etary remedies. In general, damages are granted in trade mark litigation in one of three ways, as detailed below: • Actual/compensatory damages are based on the actual loss suffered/actual profits gained as a result • honest and good-faith adoption and use; • distinctions in products and services; • the nature of the product; • pricing; and • the absence of confusion or deception.
10. Remedies 10.1 Injunctive Remedies
Civil remedies can be pursued by bringing a complaint in a competent court for infringement or passing off. There are several types of civil remedy available, such as: • a Mareva injunction (freezing injunction);
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