INDIA Law and Practice Contributed by: Safir Anand and Twinky Rampal, Anand and Anand Advocates
doctrine to digital content. This ensures that copyright holders retain control over the sub - sequent distribution of digital goods. Digital content resale limitations • No resale of digital goods: Unlike physical copies, digital goods (eg, software, movies or music) cannot typically be resold due to restrictions imposed by licensing agreements and digital rights management (DRM) tech - nologies. • Impact of DRM technologies: DRM tech - nologies enforce restrictions on the sharing, copying or transfer of digital content, mak - ing resale impractical and often illegal under licensing agreements. Summary • Physical copies: The doctrine of first sale applies to physical goods, allowing lawful resale or redistribution of copyrighted works after the first sale. • Digital content: The doctrine of first sale does not extend to digital goods. Licensing agree - ments and DRM technologies ensure that copyright owners retain control over digital content, restricting resale or redistribution. 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); • an Anton Piller order; • a John Doe order; • a permanent or perpetual injunction; • damages or accounts of profits; and 10. Remedies 10.1 Injunctive Remedies
• delivery up and destruction. Preliminary or temporary relief is available and is frequently requested in trade mark infringement lawsuits. The Code of Civil Procedure (1908) makes it eas - ier to file an application for an injunction prohibit - ing a defendant from using a mark that infringes on a claimant’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; • 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. 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 pro - vide monetary remedies. In general, damages
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