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Annual Newsletter 2022
2018: We are all in this together!
The Merriam-Webster word of the year for 2018 is 'Justice'. It was a top look-up throughout the year at Merriam-Webster.com, which goes on to prove that the concept of justice was at the center of many debates around the globe this past year: racial justice, social justice, criminal justice, economic justice. In any conversation about these topics, the question of just what exactly we mean when we use the term justice is relevant, and part of the discussion. Justice has varied meanings that do a lot of work in the language—meanings that range from the technical and legal to the lofty and philosophical. For many reasons and for many meanings, one thing's for sure: justice has been on the minds of many people in 2018.
Prime Minister Narendra Modi was once again the top newsmaker in India in the year 2018, according to the Yahoo Year in Review list. Former Chief Justice of India Dipak Misra wrote his way into the list with third position after landmark verdicts on triple talaq and Article 377, among others. M J Akbar, who resigned as Minister of State for External Affairs after allegations of sexual harassment, also featured on the list. The year saw several women taking to social media to share accounts of sexual harassment by men in positions of power. The movement crossed over to the mainstream, garnering huge support and mobilizing every section of the media.
The Karnataka election — one of the most important events on this year's political calendar – was the Most Searched for Term in 2018. Scam-riddled Vijay Mallya and Nirav Modi also bagged spots on the list of Most Searched for Terms in 2018.
RBI Governor Urjit Patel came in at the top of 2018's Finance Newsmakers, holding his own against the government. India's richest man and Reliance Industries Chairman Mukesh Ambani – whose wealth reportedly increased by Rs 300 crore per day in 2018 – came in second on this list. Brother Anil Ambani, Reliance Group Chairman, also features on the list for the Rafale deal controversy.
2018, was also a monumental year for the Indian startup industry. Flipkart got acquired by Walmart in a massive $16 Bn deal, resulting in big, fat exits for many investors. The lack of exits has been the bane of investors in the Indian startup ecosystem. Therefore, the landmark deal went a long way in infusing confidence among investors and provided much-needed validation of the maturing growth story of Indian startups.
But silently and behind the scenes, something else was happening in 2018. It was the year that saw a huge uptick in dealmaking by China-based funds, mixed together with some Japanese ones as well. Data from research firm Venture Intelligence shows that investors from China and Japan were involved in a higher number of deals in 2018 than in the last seven years, with the total deal count for the year standing at 77, with an aggregate value of $3.6 Bn. Among these, Japanese MNC holding conglomerate Softbank, led by Masayoshi Son, is leading the charge. Softbank is the largest player, having executed a total of 25 deals in the country worth about $8.6 Bn and added notable startups like Paytm, Ola, OYO, and PolicyBazaar to its kitty.
Meanwhile, the year 2018, was also a stepping stone in the success of SSRana & Co., where the Firm not only successfully completed 29 glorious years of hard work and commitment since 1989, but also retained all the ISO certifications, namely, the ISO 9001:2015, ISO 27001:2013, and ISO 50001:2011 certifications, which reinforces the Firm's commitment towards instilling best practices aimed at improving its business performance and providing proactive and high-quality legal services to it's clients. However, the highlight of the year was the Firm's Founding Partner, Mrs. Bindra Rana completing her 50th Anniversary at the Bar Council of Delhi on November 8, 2018. With nearly 50 years of experience in Banking, Corporate, Commercial Laws, IP, and Service matters, Mrs. Rana is a Supreme Court Advocate-on-Record, a Registered Patent Agent, and an IP Attorney. In her present role, she leads the firm's Litigation Team along with its Founding Partner Sohan Singh Rana. She also heads the firm's Anti-Sexual Harassment Committee. Throughout her career, Mrs. Rana has advised several Fortune 500 companies and some of the world's leading corporations with regard to securing, protecting, enforcing, and exploiting their IP assets in India and globally!!
2018 – A Year in Corporate Law
India: New e-KYC for Telecoms without Aadhaar
Humans being 'social animals' have developed and evolved themselves distinguishing them from the other living creatures with their advanced ability to communicate with one another. Physical form of communication was dominant for a number of years and those separated by distances managed to remain connected with the means of letters or messages via messengers. Updated version of technology has allowed the virtual platform to serve as the new means of the communication allowing individuals to interact although they may be miles apart from one another through the means of telecommunication services. Major sectors of the Indian telecommunication industry are telephone, internet and television broadcast Industry.
Regulating telecommunication
The Government through its telecom branch enforces polices and guidelines for the regulation of telecommunication in India which is monitored by the Telcom Regulatory of India (hereinafter referred to as "TRAI") in accordance to the provisions of Telecom Regulatory Authority of India Act, 1997 (hereinafter referred to as "TRAI Act").
For the purpose of enrolling new customers to avail their services, the telecommunication service providers verify their authenticity by subjecting them to the 'Know Your Customer' (hereinafter referred to as "KYC") norms as per the directions of the DoT. The said process requires submission of documents indicating the proof of identity and address of the new subscriber such as PAN Card, Voter ID, Driving License, Passport, etc would suffice. These identity proofs help in unique identification of a particular customer of the respective service provider. One of the commonly used documents for this procedure was Aadhaar card, the use of which has now been prevented for the private companies under the Supreme Court order dated on September 26, 2018.[1]
In furtherance to the same the DoT instructed the telecom operators to be ready with an alternate verification process for approval by November 5, 2018, as it prevented the operators to stop using Aadhaar e-KYC for the verification process.[2]
DoT introduced a new 'alternate digital KYC' on the recommendations of Telecoms for issuing new mobile connections whereby the customer acquisition form is to be embedded with live photograph of subscriber along with original proof of identification and proof of address document thus digitising the end-to-end process for on-boarding of new mobile subscribers by making it completely paperless.[3] The procedure to be followed in the said regards in stated below:
Entire process shall be used through authenticated applications hosted by telecoms.
Access of the applications should be controlled by the telecoms and the same should be protected from unauthorized use.
A new customer shall possess original proof of identification and proof of address document at the point of sale of the telecoms.
Live photograph of the subscriber is to embedded in the customer acquisition form to which the system shall put a watermark having customer acquisition form number, GPS coordinates, point of sale name, unique point of sale code, date and time stamp.
Likewise, the live photograph of the original proof of identification and proof of address document shall be captured in the aforesaid manner.
All customer acquisition form entries shall be made in consonance to the original proof of identification and proof of address document.
Validation shall be complete upon the provision of the One Time Password sent at the alternate number of the customer or his/ her relative.
Point of sale shall intimate the new subscriber regarding the transaction-ID/ reference number generated at the time of submission of the customer information by the telecoms to the activation officer.
Upon successful verification by the Telecom representatives that the information in the live pictures of the customer, his/her proof of identification and proof of address and other details in the customer acquisition form the new connection would be activated followed by a final tele-verification process before final activation.
DoT clarified that only 2 mobile connections will be provided per day per proof of identification and proof of address document to a customer by the operator using the alternate digital KYC process. Also, the said process of verification would be applicable for outstation and foreign customers.
The process of an effective and adequate mechanism for verification of new telecom customers without using Aadhaar ecosystem has been streamlined.
India: EV charging stations – a new business venture
The dawn of industrialization has replaced the human labor with machines. Facilitating travel by the incorporation of technological advancements has made a significant contribution towards elevating human life. Reducing the time for transportation, it has fostered the connectivity between the people separated over distant places in terms of social and economic relations between them. Automobile industry has seen a vast improvement with the passage of years due to skills of the innovators allowing a wide range of vehicles with fascinating features such as speed which build interest of their customers. However, the fuel used to run them often depends of the usage of depleting non-renewable sources of energy such as petrol and diesel which are one of the major sources of pollution.
Pollution issue
The indiscriminate, reckless and irresponsible dependence on burning of fuel for automobiles has resulted in high degree of contaminating the air, water, soil and the overall surrounding environment hampering the health of living organisms of all forms. With the raising levels of emissions being recorded and the concerns thereof, Environment Protection Act, 1986 has been enforced with the aim of conservation and improvement of environment was introduced along with legislations working such as Air (Prevention and Control of Pollution) Act, 1981. Handling the menace of pollution, more environment conducive options such as usage of Electric Vehicles (hereinafter referred to as "EV") have been popularized. The Government is aiming to provide an impetus to the entire e-mobility ecosystem including vehicle manufacturers, charging infrastructure companies, fleet operators, service providers, etc under the objectives of its National E-Mobility Programme.
Efforts are consistently being made to encourage the adoption of EVs and thus the setting up of the stations equipped with facilities to ensure proper charging thereof. Planning of EV charging infrastructure needs to consider multiple issues such as number of charging stations needed and their locations, availability of sites for the charging stations, type of charging station needed at each location, rules and regulations relevant for the deployment, availability of electrical grid capacity, timing of the rollout, dealing with possible changes in the plan, etc.
The Government is planning to provide INR 1,000 crore as subsidy for building a nationwide charging infrastructure for electric vehicles as it seeks to expedite the roll-out of India's ambitious EV programme[1] and is also working to modify the existing legal framework to incorporate the EV charging stations in residential as well as commercial complexes including parking lots.[2]
Steps further…
Focusing on promoting the EVs, the Government is working to permit the individuals to open public electric vehicle charging stations without applying for licences.[3] Not set any qualification criteria have been released in the said regard although compliance to the specifications and performance standards to be issued by the Government would be required.
State electricity regulatory commissions shall fix tariffs for electricity supply from distribution companies to the charging stations at a ceiling of 15% over the average cost of supply. The tariff charged by charging stations from electric vehicle owners will also be capped by the state Government.
In order to make EVs a preferred choice of a substantial segment of the population of the country presently relying on polluting vehicles, the Government is easing the procedures for setting up of the charging stations not only enabling more and more businesspersons to establish such infrastructure but help greater number of such units shall help people to opt for an eco-friendly travel option.
India: Ganga Protection Bil
The life on earth is blessed in terms of the numerous resources provided by the nature. The abundant sunshine, flowing rivers and streams, the varied fertility of soil make earth a planet fit to sustain life of different forms distinguishing it from all other planets of the solar system. The rapid increase in the reckless exploitation of these resources and contaminating them with the wastes generated out of the passion of human greed have deteriorated the quality of life.
Protection of the water environment
With the objective of the protection and improvement of environment, legislative frameworks and policies have come up. The Environment Protection Act, 1986 has been enforced for the purpose of conservation and improvement of environment was introduced along with legislations working such as Water (Prevention and Control of Pollution) Act, 1974, to provide for the prevention and control of water pollution and maintaining or restoring of wholesomeness of water.
Pollution in Ganga
Originating from the Gangotri in the Himalayas, the Ganga is the longest river in India holding a great religious sanctity amongst large population of the country. Owing to wastes originating from various sources include sewage; industrial components from tanneries, chemical plants, textile mills, distilleries, slaughterhouses, hospitals; trash generated at festivals/ religious ceremonies; etc. This has severely impacted the marine life as well as the surrounding living organisms. The increasing levels of pollution have been a great cause of concern governing authorities.
Controlling the pollution
The National Mission for Clean Ganga has been implemented as per the directions of National Ganga Council set up under the River Ganga (Rejuvenation, Protection and Management) Authorities order 2016 which lays down an institutional structure for policy and implementation in fast track manner to protect the river Ganga.
In a pragmatic approach, a draft National River Ganga Bill 2018 (hereinafter referred to as "bill") is being intended to be introduced.[1]
The bill aims at setting up of an armed 'Ganga Protection Corps', and the powers to arrest offenders in order to keep the river clean and help in its rejuvenation. It lists out the different offences including spoiling or defacing ghats or stairs or throwing any improper manner, quarrying, commercial fishing without permission, deforesting hill slopes or other sensitive areas, withdrawing groundwater for organised consumption through tube wells or industrial needs, etc. Penal liabilities such as imprisonment up to 2 years or fine of up to INR 50,000 focus to deter environment harming activities. It also imposes responsibility on the in-charge of the defaulting companies unless they are able to prove that the offence was committed without their knowledge or that they exercised due diligence to prevent the offence. The bill suggests that the Centre will take control of the management, regulation and development of Ganga as the river is of unique importance ascribed to faith and reasons that are geographical, historical, sociocultural and economic is hereby given the status of a national river.
With a view to control the increasing levels of pollution in the sacred river, India has been making efforts. The proposed bill provides for more stringent measures to restrict the contamination of Ganga.
India: SEBI streamlines IPO process
Attributable to its global ranking for on 'Ease to Business' scale, India is increasingly being counted as a favored business destination in the world. In order to facilitate the carrying out of business activities of varied nature, the Indian legal system allows a number of business structures such as proprietorship, partnership, companies and limited liability partnership. Incorporation of a company is a common mode for business transactions in the country.
Companies are the artificial legal entities having existence independent from its shareholders. Incorporated for the purpose of carrying out business activities as stated in its Memorandum of Association, the companies are often confronted by the requirement of capital with view to expand its operations and earn greater profits. The raising of capital for the said purpose is required to be done in accordance with the Companies Act, 2013 (hereinafter referred to as the "Companies Act").
Investment in India
The Government is regularly devising schemes that boost the Indian market. The fastest growing economy not only encourages progress of business in India but also makes it an attractive investment option. With a view to secure investment for the Indian business sector, the Government has been making efforts with the help of introduction of investor friendly policies.
Regulated framework
Governed under the provisions of the Securities and Exchange Board of India Act, 1992 (hereinafter referred to as the "SEBI Act"), the Securities and Exchange Board of India (hereinafter referred to as the "SEBI") is the market regulator of India which aims to protect the interests of investors in securities and to promote the development of, and to regulate the securities market and for matters connected there with or incidental thereto.
One of the mediums for the companies to raise capital is through initial public offer means an offer of specified securities by an unlisted issuer to the public for subscription and includes an offer for sale of specified securities to the public by any existing holders of such specified securities in an unlisted entity. It serves as the largest source of funds for a company to meet expenses for its projects and go public by being listed on a Stock Exchange.
IPO timeline reduction
SEBI, in its endeavor to provide an efficient mechanism for raising funds, has been continuously striving to regulate the process and methodologies associated with public issue fund raising process. In the said regard, the regulator issued a circular for streamlining the process of public issue of equity shares and convertibles dated November 1, 2018.[1]
With a view to free up the locked investor funds faster so as to benefit both issuers as well as investors, SEBI has initiated the process to reduce the timeline for public issues from the current 6 days to 3 days in a phased manner by making it mandatory for intermediaries to provide retail investors the option of bidding through the Unified Payments Interface as a payment mechanism with Application Supported Block Amount for applications in public issues.
In the second phase, the current mechanism of physically submitting bid forms from the intermediaries to the banks would be discontinued after 3 months. The said process would be effective April 1, 2019 onwards.
Subsequent third phase provides that final reduced timeline will be made effective using the Unified Payments Interface mechanism.
The proposed process is expected to increase efficiency, eliminate the need for manual intervention at various stages, and will reduce the time duration from issue closure to listing by up to 3 working days.
India: E-reporting of air pollution incidents
The alarmingly high rates of pollution have raised great concerns for the Government. The dipping air quality index specifically during the festive season is indicative of the worsening of the environment and the dangers of the prospective increase of pollutants therein. The present levels are sufficient to contribute towards the lower health standards and with such a poor-quality air with dangerous gasses, it shall become difficult for people to ordinarily breathe in the open air. Visualizing the gravity and sensitivity of the issue, the Central Pollution Control Board has notified for inviting complaints in this regard.
Introduction of contaminants such as any solid, liquid or gaseous substance present in the surrounding ecosystem in such a concentration, as may be, or tend to be injurious to environment including air, water, soil and inter-relationship between living creatures.
The needs of the modern lifestyle require excessive usage of resources. The unregulated and indiscriminate usage of energy resources without controlling the emissions released for purposes of industrial usage, vehicular needs, crop destruction, construction activities, burning of garbage, thermal energy, etc. cause pollution. Also, the inducement of the environment damaging components in the form of man-made pollutants such as plastic, chemicals, firecrackers, electric/ electronic equipment, radioactive/ nuclear wastes, etc. result in further environmental harm.
Ill-effects
Raising pollution has resulted in the accumulation of problems such as dermatological issues, chronic respiratory disorders, cardiovascular problems, retardation of fetal growth, etc. This has affected most to the children and old people. It has also caused in death and extinction of various species which once resided on the planet, making an ecological imbalance in the co-existent natural system.
Controlling mechanism
The Environment Protection Act, 1986 with the objective of conservation and improvement of environment has been introduced along with various legislations working towards the protection of various environmental components.
To ensure effective monitoring and regulation of pollution, authorities such as the Central Pollution Control Board (hereinafter referred to as "CPCB") have been established which works for cleanliness thus improving the environment. In furtherance of the said objectives CPCB consistently formulates strategies.
Confronted by the challenge of handling the pollution menace, the Government has taken numerous recent measures. It has been creating awareness and involving citizen participation in the campaigns aimed at the conservation of the environment in the form encouraging plastic ban, electric vehicle usage, usage of low emission vehicles, advantages of shared mobility/ public transport, etc.
E-complaints
The Central Pollution Control Board Thursday informed the Supreme Court that it has created social media account on Twitter ( https://twitter.com/CPCB_OFFICIAL ) and Facebook ( https://www.facebook.com/Central-Pollution-Control-Board-315289479059625/ ) to facilitate citizens in lodging complaints pertaining to air pollution incidents in Delhi-National Capital Region. Apart from the social media accounts, complaints can be lodged through Sameer mobile App. [1]
This comes in furtherance to the Supreme Court order dated October 29, 2018, prohibiting the plying of 15-year old petrol and 10-year old diesel vehicles in the National Capital Region due to the alarmingly high levels of pollution in the region.[2]
With the proliferation of internet in the modern lifestyle and attributable to its ready accessibility, more and more people of the country are active on the social media platforms. These not only help to share their viewpoints, comments, pictures, videos, etc. while using such interface for social networking purposes. The Government is using this digitalization media to control the pollution causing activities by using the e-space for reporting such incidents.
India: 'RuPay' gaining rapid popularity
Development of internet technologies and its ready acceptability in the modern world has transformed the human world. The increased level of technological advancement can be witnessed from the fact that most of the transactions which were carried out manually or with much effort have now been switched with readily available and user-friendly electronic equipment. The advent of digitalization has touched almost all spheres of human lives making it more independent and self-reliant. Numerous forms of interactions are available on cyber-space connecting people via email, chatting, e-calling, e-commerce, e-banking, etc.
Online Payments in India
India finds a vast segment of its population now dependent on technology for carrying out number of transactions. The Government has also made efforts for promoting cashless mode of dealings through the digitalization.
Online payments in India are regulated by the National Payments Corporation of India (hereinafter referred to as "NPCI") which is the organisation for operating retail payments and settlement systems in India. The unified payment interface (hereinafter referred to as "UPI") is an instant real-time payment system developed by NPCI and regulated by Reserve Bank of India (hereinafter referred to as "RBI") that facilitates inter-bank transactions occurring on the web-platform.
Payment Companies in India
A number of payment companies are flourishing in India presently. Card payment companies such as Visa, MasterCard have been prevalent in the Indian market since a long time ensuring hassle-free payment transaction. The recent addition to this is the first of its kind indigenous payment system known as 'RuPay', launched by the NPCI, conceived to fulfil RBI's vision to offer a domestic, open-loop, multilateral system which will allow all Indian banks and financial institutions in India to participate in electronic payments.
Advantages of RuPay
The newly introduced RuPay system is beneficial in the following ways:
Lower cost and affordabilityin terms of cost of clearing and settlement for each transaction.
Protection of information relatingtotransaction and customer data
Provide electronic product options to untapped/unexplored consumersegment in rural areas that do not have access to banking and financial services.
Inter-operability between payment channels and products
Foreign Players upset
Since its inception, RuPay has been strongly promoted and campaigned for by the Indian Government encouraging the reliance to domestic payment services network. This has resulted in increasing popularity breaking the dominance of the dominant players such as MasterCards and Visa.[1] More than half of India's 1 billion debit and credit cards now go through the RuPay payment system challenging the position of the existent entities in the market. Causing a sense of envy amongst the others in this sector has risen regarding their business.
The Indian version of the payment systems in the form of RuPay has gained rapid popularity in the country ousting the major organizations having established their presence since a long time owing to their cost-effective, safe and advantageous features.
India: Maneuvering the havoc of Pollution
The rapidly changing modern life has made the mankind dependent on fulfilment of various needs. The human greed has expanded to the extent that it fails to distinguish between the essential and non-essential requirements. In today's time most of the individuals have multifaceted requirements at the cost of nature due to uncontrolled and unwarranted usage of natural resources.
Pollution a menace
The reckless and careless usage of non-renewable sources of energy has resulted in elevated levels of pollution in the ecosystem. There has been inadequate disposal of remnants of energy resources used for purposes of industrial usage, vehicular needs, crop destruction, construction activities, burning of garbage, thermal energy, etc. Adding to the contamination of the environment are the man-made pollutants as plastic, chemicals, firecrackers, electric/ electronic equipment, radioactive/ nuclear wastes, etc.
Attributable to the aforesaid causes, the earth has now become a chocking chamber with immensely high quantities of poisonous components working towards deterioration of all life forms prevalent. Rise in pollution has caused problems such as dermatological issues, chronic respiratory disorders, cardiovascular problems, retardation of foetal growth, etc. It has also resulted in death and extinction of various species which once resided on the planet causing an ecological imbalance.
Protection Strategy
With the objective of the protection and improvement of environment, numerous legislative frameworks and policies have come up. The Environment Protection Act, 1986 has been enforced with the aim of conservation and improvement of environment was introduced along with legislations working such as Air (Prevention and Control of Pollution) Act, 1981, Water (Prevention and Control of Pollution) Act, 1974, E-Waste (Management) Rules, 2016, Plastic Waste (Management and Handling) Rules, 2011, Solid Waste Management Rules, 2016, etc. The National Green Tribunal Act, 2010 was brought forth to ensure effective and expeditious disposal of cases relating to environmental protection under the authority of the regulator – the National Green Tribunal.
Administrative Efforts
Considering the urgency and essentiality of protection of the environment, the administrative authorities of the country has taken numerous steps, some of which are listed below:
The Ministry of Environment, Forests and Climate Change launched Green Good Deeds campaign on February 3, 2018, with the objective to sensitise the people about climate change and global warming and to inculcate their participation in the protection of the environment.
The Government has also unveiled a campaign to tackle plastic pollution along its 4,660 miles of coastline and will seek to make 100 national monuments litter-free on World Environment Day, 2018, based on the theme – "Beat Plastic Pollution" focussing on adoption of environment friendly substitutes.[1]
In order to tackle the problem of waste management in respect to the industries involved in manufacture of plastic products, the NGT ordered for the appointment of a committee of Central Pollution Control Board and Delhi Pollution Control Committee vide its order dated September 18, 2018. [2]
The Supreme Court imposed a fine of INR 500,000 to the State of Andhra Pradesh and INR 300,000 each on the States of Madhya Pradesh, Maharashtra, Odisha, Uttarakhand and the Union Territory of Chandigarh on account of their failure to submit their respective State/ Union Territory solid waste management policy [3].
The Supreme Court directed the use of cleaner fuel – Compressed Natural Gas vehicles in Delhi airport only for buses and coaches. [4]
Promoting e-safe automobile options in the Electric Vehicles, The Ministry of Road Transport and Highways has exempted the requirement of any permits in order to encourage the use of vehicles which do not pollute the environment.[5]
The Government is working to bring forward schemes and policies to incentivise the local production of lithium-ion batteries. [6]
Efforts are being made to modify the existing legal framework to incorporate the Electric Vehicle charging stations in residential as well as commercial complexes including parking lots.[7]
With a view to encourage shared mobility in India and transportation being a subject matter of State jurisdiction, the Government is in the process of introduction of a model legislation for States to regulate and monitor the same aiming to fulfil the objectives such as decongestion of roads and incentivising pooled travel.[8]
The Government of India introduced Graded Response Action Plan for implementation under different Air Quality Index categories namely, Moderate & Poor, Very Poor, Severe and Severe+ or Emergency as per National Air Quality Index. The authorities are bestowed with the responsibilities to minimize the air pollution level depending upon their respective Air Quality Index.
Confronting the challenge of high level of air pollution in Delhi and the National Capital Region raising serious concerns requiring urgent attention on Air Quality Early Warning System for Delhi was launched on October 15, 2018 designed to predict extreme air pollution events and give alerts to take necessary steps as per Graded Response Action Plan. [9]
The Supreme Court has stepped forward to tackle the menace of cracker bursting on several festivals including the upcoming event of Diwali and other like occasions by its order dated October 23, 2018, whereby it permitted the use of 'green' crackers with low emission during the course of festival celebrations at restricted time intervals.[10]
The Supreme Court imposed a bar on the automobile companies from manufacturing and selling vehicles that are not compliant with the Bharat Standard-VI emission standards after March 31, 2020 seeking reduction of polluting emissions.[11]
The Supreme Court vide its order dated October 29, 2018, prohibited the plying of 15-year old petrol and 10-year old diesel vehicles in the National Capital Region due to the alarmingly high levels of pollution in the region.[12]
Halt of all construction activities involving excavation, civil construction to remain closed in Delhi and other NCR districts from November 1, 2018 – November 10, 2018 including closure of all stone crushers, hot mix plants generating dust pollution in Delhi and other NCR districts from November 1, 2018 – November 10, 2018 has been ordered. [13]
All industries using coal and biomass as fuel (excluding thermal and waste to energy plants)
are directed to be shut in Delhi and other NCR districts from November 1, 2018 – November 10, 2018.13
Transport department and traffic police shall be required to intensify checking of polluting vehicles and control travel congestion in Delhi and other NCR districts from November 1, 2018 – November 10, 2018. 13
Stringent monitoring including imposition of on the spot fines for visibly polluting vehicles indicative of zero tolerance towards pollution causing vehicles. 13
Publishing of public advisory in newspapers recommending the public to reduce outdoor activities and minimise their travel using private vehicles as much as possible encouraging reliance to public transport. It shall also inform about penalties that may be imposed to penalize the pollution causing segment including industries. 13
EPCA has warned that in the event of further dipping of pollution levels, the private vehicles would be stopped from plying. 13
In view of depleting air quality, the Court of District Magistrate of Ghaziabad (hereinafter referred to as the "Court") has ordered suspension of all private construction activities and has instructed the sealing of any visibly polluting industries and the ones which are using fuels till November 10, 2018 considering the critical air quality recognized as 'Severe'.[14] The said judicial authority also recommended the closure of seven identified polluting industries violating the green norms.
The Environment Pollution (Prevention & Control) Authority has further mandated the Delhi Pollution Control Committee to regulate the Government agencies to ensure efficient control of pollution levels.14
To reduce the increasing levels of pollution in its region, Delhi Pollution Control Committee has introduced a scheme of awarding subsidy for replacing/ conversion of coal-based tandoors with electricity/ gas-based tandoors vide its notification dated October 28, 2018.[15]
Working for the improvement of the surrounding environment, the administrative sector of the country has made immense contributions in the form of laws, rules, regulations, policies, schemes, strategies thus making a cleaner and heathier living space.
India: E-Pharmacists perplexed over Madras HC ban
Facilitating the modern lifestyle, technological advancements have transformed the human lives. The skill of innovation has eliminated the dependence on physical media for fulfilment of major requirements and has rather provided a virtual platform making all major services such as information, record maintenance, communication, commerce, banking available at the click of a button. Taking recourse to the digitalization, the pharma sector has also entered the e-space.
Monitoring guidelines
The commercial activities pertaining to drugs and medical devices in India are regulated by the Drugs and Cosmetics Act, 1940 (hereinafter referred to as the "Act") Drugs and Cosmetics Rules, 1945 (hereinafter referred to as the "Rules") under the authority of Central Drugs Standard Control Organization (hereinafter referred to as "CDSCO").
E- Pharmacies
With the internet being readily accessible and easy to use more and more consumers are rapidly opting to use this medium for purchasing pharmaceuticals. The web-based service providers cater to the needs of their customers based on the information provided to them. The advantages of buying the medications online are not limited to saving time and effort to go to the pharmacy but also 24-hour ordering facility, doors-step delivery and attractive discounts being offered. Some of the industrial players of this domain are Netmeds, Practo, PharmEasy, Medplus Medidart, etc.
Madras HC order
A writ petition raised by the Tamil Nadu Chemists and Druggists Association, seeking ban on the websites permitting online sale of medications listed under Schedule H, Schedule H1 and Schedule X of the Act which are to be sold only on the prescription of a Registered Medical Practitioner and not otherwise. As per the petition, such rampant sale of restricted drugs through online medium without the required prescription was violative of Regulations 65 regarding requisite licenses and 97 for labelling of medicines of the Rules.
The Madras High Court (hereinafter referred to as the "Court") vide its order dated October 31, 2018, interim injunction against the online sale of medicines without license or the competent authority to stall such online sales.[1]
Confusion prevails
The aforesaid order of the Court has raised ambiguity amongst those engaged in online sale of drugs on the aspect of its applicability. The online pharmacists seek clarity if the said order deals with the business of the pharmacies trading online without license or those selling prescribed drugs without requisite prescription. [2]
The prevalent law in this regard in the form of Act and Rules does not include the digital or online medium in its current form as a mode of drug distribution or sales. Although, the Government is in process of introducing guidelines for online pharmacy industry with the objective of providing a stable framework for proper regulation of commercial transactions in respect of pharmacy products, conducted via online media, lack of proper regulation in this aspect creates ambiguity amongst the business entities in this segment as well as their consumers. The appropriate instructions by the Hon'ble Court in furtherance to their abovementioned order would enable the pharmacies and consumers to understand the position of law for online commercialization of medications until a proper legal mechanism is enforced.
India: Compliance to Data localization regulation
The advent of modernization has introduced many technology dependent miracles. Advancement in the innovative skills of human labor have facilitated the development of a digital infrastructure which caters the multiple needs of the individuals over virtual platform thereby inculcating independent handling by them. Internet is increasingly becoming the medium of carrying out all major present-day activities including information dissemination, communication, commercial transactions, banking functions, etc. This has led to the elevation of the standards of living and has raised the number of e- payments modes.
India finds a vast segment of its population now dependent on technology for carrying out number of transactions. The Government has also made efforts for promoting cashless mode of dealings through the digitalization. The payment vis this mode requires the submission of personal and sensitive information of an individual. Considering the vital nature of the information being shared, essential monitoring and control of transmission of such data is required to ensure the provision of a safe and viable payment system within the country.
Online payments in India are regulated by the National Payments Corporation of India (hereinafter referred to as "NPCI") uses unified payment interface (hereinafter referred to as "UPI") an instant real-time payment system developed by NPCI regulated by Reserve Bank of India (hereinafter referred to as "RBI") that facilitates banking operations occurring on the web-platform.
RBI monitoring
In order to have unfettered supervisory access to data stored with payment companies as also with their service providers / intermediaries/ third party vendors and other entities in the payment ecosystem for better monitoring of the payment transactions in India, RBI vide its notification dated April 6, 2018[1] imposed norms regulating data localization (hereinafter referred to as "RBI regulation"). The RBI regulation requires all system providers to ensure that the entire data including the complete transaction details and information regarding the payment instruction relating to payment systems operated by them, are stored in a system only in India October 15, 2018 onwards.
Response by the Payment Companies
Confronted with the challenges such as lack of available servers or data centers in India, administrative cost, compliance burden and time-consuming process being involved therein, the payment companies expressed their concerns to the RBI. However, RBI refused to accept the representations made by the payment entities requesting for the relaxation of norms stated in the RBI regulation seeking the adherence to the same by the deadline provided therein. RBI mandated for the submission of a report in ensuring compliance and clarified that any event of non-obedience to the said directive would entail punitive action against the defaulters.[2]
The consequence…
Attributable to the strict nature of the instructions provided in the RBI regulation, renowned entities such as Visa and Mastercard are in the process of compliance to the data localization policy.[3]
Understanding the confidential nature of data being provided by the customers to these service providers and the impact of the violation of its safety, almost 80% players in this sector have commenced the procedure of compliance to the RBI regulation including submission of proposals to RBI in the said regard. The stringent monitoring by RBI aims to create a more effective and secure data protection regime in India by monitoring the payments done in India.
India: Government to strengthen 'women- safe' laws
One of the important gifts of modernization is equal recognition of the caliber of women. Restricted to the household works and raising of children, the women were confined to the four walls of the house in the earlier times. However, the evolution in the society has enabled the identification of the talent of the women and their right to earning a livelihood. Nowadays, men and women work together and earn themselves a respectable living in the society. Although, co-working is now a socially accepted phenomenon, women at workplace are often subjected to harassment and misbehavior by their employers and co-workers.
Sexual Harassment activities have been identified as unwelcome behavior by any person either individually or in association with other persons or by any person in authority whether directly or by implication such as eve-teasing, physical contact and advances, sharing offensive data or any other unwelcome physical, verbal or non-verbal conduct of sexual nature.
Present Day Scenario
There have been numerous episodes disclosing ill-treatment against the female staff by their colleagues. Not restricted to limited segment of the society, even the most glamourous professions come within this darker side. Owing to many reasons including exploitation as well as harassment by enquiring authorities and questioning eyes of the society, such instances are continuing and majorly, not reported.
In the recent times, a change is being witnessed where the problem of sexual harassment in work place is increasingly coming into light with more and more women are bringing such cases to the knowledge of the people and bringing the awareness in the society, and in many cases to the records of police also, whereas earlier they were hiding these issues.
Prevalent legislature
A number of efforts are being made with a view to ensure the provision of safe working environment for the women.
The Supreme Court of India vide its judgement in the leading case of Vishakha and others v. State of Rajasthan[1] laid the guidelines for ensuring a safe work environment by casting a duty on employer to prevent or deter the commission of acts of sexual harassment and to provide the procedures for the resolution, settlement or prosecution for the same while holding that Gender Equality as a part of the Fundamental Rights enshrined under Articles 14 (Right to Equality), 19 (Right to Freedom) & 21 (Right to Life) of the Constitution of India.
The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 was enforced which provides for constitution of Internal Complaints Committee to monitor and regulate the complaints of sexual harassment, settlement through conciliation, is the duty of the employer as per Section 19 to provide a safe working environment, inform about penal consequences for committing sexual harassment, organization of workshops and awareness programmes sensitizing the employees, providing adequate redressal forum, etc.
Need for more…
Even though efforts have been made to tackle the issue of sexual harassment at workplace, the repeated cases have risen the concerns of the Government. In order to reinforce the legal mechanism in the said regards, the Group of Ministers are in process of strengthening the existing framework of rules and regulations as well as for institution set ups to create an efficient and effective system to control the problem of sexual harassment.[2] The Government is working to devise new strategies and policies for protecting the rights of the women based on the recommendations by the legislature.
In furtherance of the same, the Government has launched an electronic complaint box to allow women to submit their complaints of sexual harassment committed against them, irrespective of their work status.
India is making consistent efforts to make it a women friendly working environment.
2018 – A Year in Trademarks
India: Delhi High Court Orders Sardarbuksh to Stop Infringing Starbucks trademarks and copyrights
The Hon'ble Court entered a judgment in favor of the purveyor of premium coffee against the chain that opened as Sardarbuksh. Starbucks Corporation filed a suit before the Hon'ble Delhi High Court in July 2018 alleging that the Sardarbuksh name and logo infringed Starbucks trademarks and copyrights. The Sardarbuksh logo shared with the Starbucks logo a design consisting of concentric circles, the similar words "Sardarbuksh" and "Starbucks" at the top of the outer circle, a figure surrounded by wavy lines in the middle, and a black, black, and white color scheme.
In the final order recorded by the Hon'ble Delhi High Court on September 27, 2018, SardarBuksh will have to change its name to SARDAR – JI – BAKHSH and to stop using the logo within two months. Under the order, Sardarbuksh will also refrain from using any green color in their logo or as a principal color in their marketing materials.
Further, SardarBuksh will not use, register, or seek to register any mark containing the term "Sardar" in connection with the components "Buksh", "Bakhsh", "Baksh", "Star", "Buck", or "Bucks", other than "SARDAR – JI – BAKHSH" or "SARDAR – JI – BAKHSH COFFEE & CO."
During the final proceedings, SardarBuksh submitted to the Court that they should have the liberty to initiate infringement actions against any third party that uses a mark that is deceptively similar to 'Bakhsh'. However, the Court was of the view that they cannot file an infringement action, but could take action against a third party for passing off. The Hon'ble Court therefore ordered that if any third party uses the mark 'BAKHSH', Sardarbuksh has the right to file a suit against the said violator.
SardarBuksh will also withdraw their pending four applications for registration of trade marks containing the name SARDARBUKSH or any other application for registration containing the term "Sardar" in connection with the components "Buksh", "Bakhsh", "Baksh", "Star", "Buck", or "Bucks", other than "SARDAR- JI -BAKHSH" or "SARDAR – JI – BAKHSH COFFEE & CO.".
Sardarbuksh has undertaken to comply with all settlement terms within two months from the Court's Order dated September 27, 2018.
Talking about the dispute, a Starbucks spokesperson told the Economic Times, a daily newspaper, that 'We always prefer to resolve trademark disputes informally and amicably whenever possible, and to prevent confusion among customers.'[1]
India: Delhi High Court on the link between cause of Action and Jurisdiction
In the case of Microsoft Corporation & Anr vs Rajesh Kumar & Ors the Hon'ble Delhi High Court dismissed the application filed by Rajesh Kumar and others (hereinafter referred as the Defendant) under Order 7 Rule 10 of CPC holding that the Hon'ble Delhi High Court had jurisdiction to decide the case filed by Microsoft Corporation and another (hereinafter referred as the Plaintiff).
Brief Facts
The Plaintiff is a subsidiary of American software company Microsoft Corporation, headquartered in Hyderabad, India. It has offices in the 9 cities of Ahmedabad, Bangalore, Chennai, Hyderabad, Kochi, Kolkata, Mumbai, the NCR (New Delhi and Gurgaon) and Pune.
Defendant is a global software services company headquartered at New Jersey, USA and having other offices in DC Metro area and a state-of-the-art outsourced software development based out of New Delhi, India.
It was alleged that the Defendant used unlicensed versions of the Plaintiff's software for servicing its clients, on the Defendant's employees' laptops, during presentations, etc. Cause of action arose in Gurugram, Haryana and Hyderabad, Telangana where Plaintiff have their offices and carrying on their business.
An application under Order 7 Rule 10 of CPC was filed by the Defendant alleging that in the entire plaint there is no allegation from the Plaintiff for copyright violation in Delhi, but only in Gurugram, Haryana and Hyderabad.
Therefore, it was alleged this Court has no territorial jurisdiction to entertain this suit and the plaint be returned.
Plaintiff's Contentions
It was contended that since the Defendant was using the unlicensed software to service the clients in Delhi, the Court had jurisdiction.
It was also stated that since the Plaintiff carries on business from Delhi, the Court had territorial jurisdiction. Thus, the Defendant's own documents or its websites gave hints of its operative office in New Delhi.
Referring to page 24 of the Defendants' website that the Defendant admitted that they are using the Plaintiff's technology. It was further pointed out that page 46 of the website states that 'the Courts in New Delhi, India shall have the exclusive jurisdiction on any dispute that may arise out of the use of this site.'
Defendant's Contentions
It was alleged that this Court had no territorial jurisdiction as the Plaintiff had business and its subordinate offices at Gurugram and at Hyderabad and at which places the cause of action had also arisen.
The allegations made in para 28 of the plaint that 'Defendant would be servicing their clients, using the unlicensed software programs of the Plaintiffs, on the Defendants' employee's laptops, during presentations etc., in Delhi', were denied calling it a speculation.
It was alleged that in the entire plaint there is no averment of Plaintiff's copyright violation within the territorial jurisdiction of this Court and rather per averments made in the plaint, the cause of action has arisen only at Gurugram, Haryana and in Hyderabad, Telangana at which places the Plaintiffs have their offices and are also carrying its business.
The locus standi of the Plaintiff no. 2 was also challenged alleging that they were neither the owner of the copyright of this software nor an assignee.
Court's Decision
The Court referring to the rule laid down in Pfizer case and The LT Foods Ltd. case held that the Defendant had to specifically deny each, and every assertion made by the Plaintiff other than the jurisdiction, if they do not then it can be seen as an admission.
The Court also considered that on their website the Defendant had admitted that one of its offices is in New Delhi, they have also mentioned that being a global company and as per that company's governing laws, the Courts in New Delhi were given an exclusive jurisdiction. Also, as no denial of the allegations made by the Plaintiff was done, it cannot be said that the Court had no jurisdiction.
In view of the above, the Hon'ble Court held that the application under Order 7 Rule 10 for return of the Plaint filed by defendant, was devoid of any merits and dismissed the same.
India: Delhi High Court restricts the infringement of the mark 'John Deere'
The Hon'ble Delhi High Court, on May 23, 2018, passed an order in the case of Deere & Company & Anr vs. Malkit Singh & Ors, in favor of Deere & Co. (hereinafter referred to as the "Plaintiff") issuing an interim injunction against Mr. Malkit Singh & Ors (hereinafter referred to as the "Defendant") holding that the Defendant has infringed the trademark and trade dress of the Plaintiffs products in bad faith. The case is listed before the Court on July 30, 2018, for disposal as well as for framing of issues and for case management hearing.
The Plaintiffs, a company existing under the laws of the State of Delaware, USA are leading manufacturers and exporters of agricultural vehicles including tractors, harvesters, etc. as well as their spare parts under the trademark JOHN DEERE. The products of the Plaintiffs are easily identifiable by their distinct share of green paint, augmented by yellow strip.
The Plaintiffs have secured registrations for a number of its JOHN DEERE trademarks, including the (green yellow) trademark, under various classes, including Classes 7, 12 and 28 under the Trademarks Act, 1999.
In the last week of October 2017, the Plaintiffs came to know that the Defendants were manufacturing, selling, exporting and advertising infringing products under the mark MALKIT by using an identical color combination as that of the Plaintiffs. Thereafter, a Cease and Desist notice was sent to the Defendants. In response, the Defendants emphasized that they had rights over its Green and Yellow mark.
On further investigation, it was found that the Defendants were engaged in the manufacture, supply, export and sale of infringing tractors and agricultural equipment like Combine Harvesters, Rice Transplanter, Thresher, Straw Reaper, Mini Harvester etc. with an average production of 350 harvesters a year in Uttaranchal, MP, Andhra Pradesh, UP and Delhi.
The present suit has been filed for permanent injunction restraining infringement and dilution of a trademark by the Defendant, passing off of trade dress, unfair competition, rendition of accounts, delivery up, damages, etc.
Whether the Defendants have adopted a mark similarly deceptive to that of the Plaintiff in bad faith?
Plaintiffs Mark
It is stated in the plaint that the Plaintiffs' 'leaping deer' logo comprises an image of a yellow deer in conjunction with the trademark 'John Deere'. It is further stated that a particular combination of the Green and Yellow colors for its agricultural implements i.e. green color for the body and yellow color for the seat and the wheels/rims.
The Plaintiff contended that the Green and Yellow color combination had become so synonymous with the Plaintiffs that the particular shades of Green and Yellow are commonly referred to as John Deere Green and John Deere Yellow and the logo and the Green and Yellow color combination used by the Plaintiffs have collectively been termed as the JOHN DEERE marks
The Plaintiff submitted that the Defendant is engaged in the manufacture and supply of goods that are similar to the goods of the Plaintiff i.e., tractors and agricultural equipment. Further, the Defendants also advertise their products through various online portals like, www.malkitcombines.com, www.combineharvestor.co.in, www.justdial.com. The Defendants' activities clearly evidence their intention to ride upon the reputation and established goodwill of the Plaintiffs' products under the JOHN DEERE marks.
The Plaintiff contended that the Defendants had adopted and used identical trade dress, wherein the color scheme, getup, layout, manner of placement of various parts of the equipment is identical to the trade dress of the Plaintiffs' JOHN DEERE products and its Green and Yellow color combination and the same is bound to create a false impression in the minds of unwary consumers and members of the trade that, the Defendants are somehow associated with the Plaintiffs' business and that the Defendants have been specifically authorized to provide their goods and products under the John Deere trademarks by the Plaintiffs themselves.
The Plaintiff further relied on Deere & Co. & Anr. v. S. Harcharan Singh & Ors., wherein a Coordinate Bench of this Court gave an order dated March 5, 2015, recognizing the immense goodwill and reputation vested in the Plaintiffs' said marks and has held such marks to be well-known trademarks as defined under Section 2(1)(zg) of the Trade Marks Act, 1999.
Defendant's Contention
The Defendant stated that the the impugned color scheme for combine HARVESTOR was in use by the Defendant, was in the knowledge of the Plaintiff at least since 2008. In addition to the above, the predecessor of the Defendant has been using the impugned color scheme since 1988.
He further states that the Ministry of Agriculture took products of both the parties for testing purposes in 2015, and therefore, the Plaintiffs are deemed to have been aware of the Defendants' use of the impugned color combination since 2015.
In the rejoinder, the Learned Counsel for the Plaintiffs stated that the defenses sought were an afterthought and contrary to the Defendant's own reply to the cease and desist notice. He pointed out that in reply to the cease and desist notice the Defendants had taken the stand that the color combination being used by them was totally different from the Plaintiffs' color combination and asserted that they (the Defendants) had monopolistic copyright in the color combination.
Court's View
The Court opined that the Plaintiffs' were entitled to sole and exclusive use of this trade mark comprising such color combination (trademarks include combination of colors by virtue of the definition under Trademarks Act, 1999) as well as the right to claim an injunction in respect of infringement of rights due to the fact that they had secured registration for the trademark comprising a color combination of green and yellow.
The Court was of the view that the Plaintiffs' Green and Yellow color combination has been used for 100 years over the agricultural products and even the tractors (green color for the body and yellow color for the seat and the wheels/rims), therefore, the mark/combination is reputable, distinctive and stands as an instant source-identifier for the Plaintiffs' agricultural products.
The Defendants' adoption of an identical color combination, its use in the same manner as that of the Plaintiffs and its denial of the Plaintiffs' rights in the said color combination in its reply to the legal notice amounts to unfair advantage and constitutes behavior which is contrary to honest and industrial practices. Therefore, the Defendants action amounts to infringement of the Plaintiffs' trademark.
Consequently, the Court till further order, ordered an interim injunction restraining the Defendants and related parties to deal with the agricultural equipment with Plaintiffs mark.
The matter is listed before the Court on July 30, 2018, for disposal of I.A.3692/2018 as well as for framing of issues and for case management hearing.
India: Likely Preference: Tax Exemption or Trademark Protection?
The Goods and Service tax regime covered different aspects of trade and commerce under its ambit and the intellectual property regime is no exception to it. Through a notification issued on June 28, 2017, the Central Government fixed a 5 per cent Goods and Services Tax (GST) rate on food items packaged in unit containers and bearing registered brand names.[1] On July 5, 2017, the Ministry of Finance issued a clarification addressing the confusion about the phrase "registered brand names". It stated that,
"Unless the brand name or trade name is actually on the Register of Trade Marks and is in force under the Trade Marks Act, 1999, CGST rate of 5% will not be applicable on the supply of such goods"[2]
Further, with respect to the term "packaged", the Finance Ministry clarified that goods such as chhena, paneer, natural honey, wheat, rice, pulses and cereal flours are not taxed under GST. However, if these items are packaged in 'unit container' that carries a registered brand name, it will attract 5% GST.[3] The ostensible rationale behind introducing the additional tax is to level the playing field between the high profit margin companies that benefit from their brand's established goodwill and the companies that sell non–branded goods in the market. However, due to a plethora of loopholes in the tax policy, the intended objective seems far from getting realized. This step is posing more of a problem than a solution. This exemption in a way is pulling down the culture of trademark protection which it is conscientiously trying to nurture.
One of the crucial factors that governs the choice of the companies, irrespective of their operating size, is the high price elasticity of the basic food items covered under the provision. Due to this, the choice between maintaining a registered trademark and have the consumers incur 5% addition cost, or getting the trademark registered is obvious.
The small traders are suffering. According to Confederation of All India Traders (CAIT) 'About 50 corporate houses are producing food grain, pulses and other agro commodities aggregating to nearly 15 per cent of the total market under their respective registered brand name whereas rest of the 85 per cent is being produced by SMEs out of which about 40 per cent SMEs are conducting their business operations with registered trade mark.' Thus, most of the SMEs have registered their brands in order to fall in the category of good quality product. Therefore, even the government target group is not getting the benefit of the decision as envisioned. This is just going to boost adulteration in market wherein even after giving good quality produce the poor farmers are going to earn way less than what they deserve.
Even the big established players of the market have been seen taking undue advantage of the provision to maintain their hold in the market. Although the provision was originally envisaged to incentivize the small traders, many established companies that dominates the rice market in India remains exempted from paying the GST since the brand name is unregistered under the Trade Marks Act, 1999. These practices not only dilute the intended benefit for the small traders but also expose the companies to the risk of enforcing their unregistered trademarks and protecting their goodwill.
While the common law remedy of passing off is available for the protection of unregistered trademarks against unscrupulous activities, there is evidently a higher degree of protection for the registered trademarks guaranteed under the Trade Mark Act. The stringent tests of passing off, for instance, increase the burden of proof on the Plaintiff which often becomes tedious to qualify and hence results in the denial of justice. Apart from establishing deceptive similarity of the two marks, the Plaintiff is also required to prove that deception causes confusion among the public and there is likelihood of injury to the Plaintiff's goodwill. The degree to which the Plaintiff's business has actually been damaged by passing off is requisite to decide the quantum of damages. Contrastingly, the Trade Marks Act provides for actual damages to be paid where these can be shown, or, alternatively, for a "reasonable royalty" to be paid. Clearly, evaluating the actual impact of unlawful use of business' goodwill is a challenging job.
Furthermore, jurisdictional requirements for filing a suit can also be to the detriment of the Plaintiff in the case of passing off. In a case against passing off, the suit is required to be filed in the jurisdiction where the Defendant is residing, working for gain or carrying out its business or where the cause of action has arisen. This may put the Plaintiff in a position of disadvantage as he/she may lack familiarity with the Defendant's place of business and local Courts. Apart from the comparative ease in enforcement of the trademarks, other advantages like free assignability of the trade marks from one party to another also incentivize the proprietors to realize the full potential of their brand name in the market.
From the consumers' perspective, the GST policy is expected to increase the presence of the counterfeit products in the market. There will be a higher chance of a consumer getting misled about the origin and quality of the products in the absence of trademark. It would not only affect the goodwill of the established brand names but can also pose a health hazard due to lower quality and hygiene standard of the counterfeit goods.
However, due to the price factor, the provision discourages the MSMEs from registering their trademarks and hinders the development of a trade mark protected commerce in India. The effects of the provision not only defeat the objective of trademark protection but is also disruptive for the National IPR Policy 2016 which encourages commercialization of IP at the grass-root level. The ruling authority itself is bringing imbalance in the economy by defeating the strength of small scale industries by taking away their strongest weapon i.e. trademark. More than protecting just one segment of the market the focus should be on bringing homogeneity in the market for all the players as well as all the sectors of the market.
India: 20-Year-Old Legal Battle between Amul and Anul finally concludes
After a 20-year-old legal battle, Kaira District Cooperative Milk Producers Union Limited popularly known as Amul has successfully protected its trademark from Shri Shakti Dairy and Kuldeep Enterprises, who were held by the Commercial Court in Vadodara to be guilty of infringing Amul's trademark by selling and marketing their products under names that were matching with Amul's original tradename.
It was held by the Vadodara Commercial Court that the usage of the name "Anul" by the Defendants was an infringement of the Plaintiff's trademark and brand name "Amul". The reasoning used by the Court to arrive at this conclusion was that the Defendant's tradename of "Anul" rhymed with the Plaintiff's tradename "Amul" and was thus very likely to cause confusion in the mind of the consumers.
In 1998, it was brought to the notice of Kaira District Cooperative Milk Producers Union Limited, known as Amul Dairy and the Gujarat Cooperative Milk Marketing Federation Limited (hereinafter referred to as 'the Plaintiffs') that a private dairy named Shri Shakti Dairy (hereinafter referred to as 'the Defendant') based in Naroda was selling milk pouches very similar in name and design to its trademarked brands 'Amul Taaza' and 'Amul Shakti'. The copied pouches were being sold by Kuldeep Enterprises as Anul Taaza and Anul Shakti.
After they learned of it, the Plaintiffs sent a legal notice to the Defendant as well as Kuldeep Enterprises, who were marketing "Anul Shakti" and "Anul Taaza".
The Defendant continued to sell their products with the similar brand names over the years.
The Petitioner then moved to the District Court in Nadiad against them.
Later, the case was transferred to Vadodara where a new Commercial Court had been set up.
Whether Defendant's actions of selling and manufacturing their goods by the name of "Anul" under the names "Anul Shakti" and "Anul Taaza" was an infringement of the trademarks of Amul?
Plaintiff's Contention
It was contended that the Defendant was engaged in the selling and manufacturing of items named as "Anul Taaza" and "Anul Shakti", which were deceptively similar to Amul's well-known brands "Amul Taaza" and "Amul Shakti".
It was argued that the products of the Defendant were sold at village areas under the name "Anul" where the village folk could very easily get confused as it would be difficult for them to differentiate between the two.
It was also argued that the color scheme used by Anul on their dairy pouches was also similar to that of Amul's.
It contended that the Defendant's actions of selling their products under the deceptively similar name of Anul, using similar get up in the packing and using an identical color scheme highlighted the Defendant's malafide intention of imitating the trademark and reputation of the Plaintiff.
It was contended that there was no scope for confusion to be caused to the customers because the names used for its brand was phonetically different.
It was submitted that there were others as well who were imitating the labels of the Plaintiff Amul, and thus, Amul Dairy did not have any monopoly right on the said label and trademark.
It was argued that the case was misconceived because the Defendants have themselves coined and invented the term "Anul".
It held that the brand names "Anul Taaza" and "Anul Shakti" rhymed with the names of the products of the Plaintiff. Therefore, the brand names were deceptively similar to Amul's brand name and was likely to cause confusion among customers.
The Court took note of the fact that there were several documentary evidences of the registration of Amul and its milk brands that were produced. It was thus held to be clear that "Amul" is the registered trademark of Amul Dairy. Moreover, the Defendant failed to furnish any evidence to prove that "Anul" was coined and invented by it.
Thus, the Defendant, its marketing firm along with their agents, dealers and distributors were injuncted from manufacturing, processing, marketing and packing under the impugned labels. The Defendants were restrained from selling their dairy products under the name "Anul", "Anul Shakti" and "Anul Taaza" or any other deceptively confusing trade name.
2018 – A Year in Patents & Designs
Draft Patents (Amendment) Rules, 2018 published for public comments
The Indian Patent space last week witnessed another important change. The Indian Patent Office on December 4, 2018 published Draft Patents (Amendment) Rules, 2018 (hereinafter refereed to as 'Draft Rules') for public comments.
The Draft Rules aim to further amend the Patents Rules, 2003 in twofold manner:
Expansion of Rule 18 (2): A provision is proposed to be added that:
"Provided that, in respect of international application, a patent agent shall file, leave, make or give all documents including scanned copies that are required to be submitted in original, only by electronic transmission duly authenticated;"
"Provided further that the original documents, if required to be submitted in original, shall be submitted within a period of fifteen days; failing which such documents shall be deemed not to have been filed".
Expansion of Expedited Examination of Applications i.e. Rule 24C: addition of SMEs and women inventors in the category of applicants for expedited examination purposes is proposed. The Draft Rules mentioned that
sub-rule (1) of rule 24 C, clause (b) shall be substituted, as follows: –
" that the applicant is a startup; or
that the applicant is a small entity as defined in rule 2(fa) of the principal rules; or
that in case of natural persons only, the applicant or at least one of the applicants is a female; or
that the applicant is a government undertaking in accordance with clause (h) of sub-section (1) of section 2 of the Act in case of an Indian applicant, or is a similar entity in case of a foreign applicant.
Explanation:- The term 'substantially financed' in sub-clause (iv) of clause (h) of sub-section (1) of section 2 of the Act shall have the same meaning as in the Explanation to sub-section (1) of section 14 of the Comptroller and Auditor-General's (Duties, Powers and Conditions of Service) Act, 1971, or
that the applicant is eligible under an arrangement for processing an international application pursuant to an agreement between Indian Patent Office with another participating patent office. Explanation: The patentability of patent applications filed under clause (f) above will be in accordance with the relevant provisions of the Act."
Additionally, a proviso is proposed to be inserted in Rule 24 C (4) that 'Provided that if such requirements are met before issuance of FER, the application shall be processed for expedited examination in accordance with the provisions of rule 24-C.'
The draft rules further propose to insert the sub-rules in the principle rule 55 of the Patent Rules and suggested to constitute an Opposition Bench in case of pre-grant opposition. The proposed sub-rules are as follows:
After sub-rule 2: 2(A) the Controller shall constitute a bench comprising of two members who shall proceed to dispose of the application and the representation jointly. If in case, the members of the Opposition Bench differ in opinion on any issue, the Controller shall nominate a third member to the bench and subsequently the majority decision will be treated as final.
The word "Controller" shall be substituted with the word "bench" in sub-rules (3) and (5) of the principle rule 55. Meaning thereby, the bench in the case of sub-rule (3) and (5) shall be responsible for the refusal or acceptance of the pre-grant opposition.
The Draft Rules can be accessed here, which are open for public comments for 30 days from the date on which copies of the Gazette of India, in which this notification was published were made available to the public i.e. December 4, 2018.
Bio-piracy initiative by India
India has always been at the forefront when it comes to a debate about misappropriation of its traditional knowledge by corporate entities and foreign research organizations. The traditional knowledge is considered as information about natural products carried over by communities through generations without proper account or documentation of the same. Recently, the debate has been curated (articulated) as involving issue of bio-piracy, where an entity makes use of traditional knowledge illegally and reaps benefits out of such exploitation without prior consent of communities and sharing any benefits with communities.[1]
Last year, India had initiated discussion at WTO about the issue of bio-piracy. The same discussions have been revived with an international session regarding bio-piracy being co-organized by India next month in collaboration with Geneva based inter-governmental organization South Centre. The number of communities' representative from Brazil, Australia, New Zealand, China, Namibia, Peru and the United States will be participating in the session along with Zo Indigenous Forum, a human rights-based indigenous people's organization in Mizoram.[2]
India along with developing countries is demanding mandatory disclosure under Patent law of two kinds of information by patent applicants:
Source or origin of biological resources; and
Evidence of prior informed consent and benefit sharing with communities.[3]
Disclosure of such information by patent applicants will result in reducing the chances of exploitation of traditional knowledge propagated among local communities.
In the past, the Indian Parliament has passed legislation and also made amendment to existing legislation for protecting interest of communities in traditional knowledge. National Biodiversity Act protects traditional knowledge by regulating use of such information by a foreigner, Indian citizen, and body corporate controlled by foreigner/Indian citizen. The said Act also have requirement of prior permission by entity seeking IPR protection based on knowledge/information obtained from Indian communities. Section 3 (p) of the Indian Patent Act, 1970, also bars the patent protection for invention involving use of traditional knowledge or any duplication or aggregation of such knowledge. Further, there is protection provided under Protection of Plant Varieties and Farmers Rights Act 2001, Geographical Indication of Goods (Registration and Protection) Act 1999, and Scheduled Tribes and other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006.
Other initiatives by India include Traditional Knowledge Digital Library which is a digitized traditional medicinal knowledge available in public domain in the form of existing literature (Ayurveda, Unani, Siddha and Yoga).[4] This initiative was formulated in backdrop of revocation of patent on wound healing properties of turmeric at the USPTO and patent granted by European Patent Office on antifungal properties of neem. TKDL has increased access to traditional knowledge and use of such knowledge for beneficial purposes.
At international level, Convention on Biological Diversity has envisioned three objectives including conservation of biological diversity, the sustainable use of its components, and equitable sharing of benefits arising from utilization of genetic resources. Under this convention, Nagora Protocol was incorporated for providing access to genetic resources and fair and equitable sharing of benefits arising out of their utilization. The Protocol intends to create incentives to conserve biological diversity, sustainable use of its components and further enhance the contribution of biological diversity to sustainable development and human well-being.[1]
The session on bio-piracy is a move to realize the inherent right of indigenous communities over such traditional knowledge. Such sessions intend to build pressure on developed countries to amend their domestic laws incorporating requirement of making disclosures as discussed above. India and other developing countries has already proposed to amend TRIPS agreement with such requirement.
Patentability of Block Chain Technology
Blockchain technology is basically a type of technique or platform used to implement public ledger system. The blockchain is an indestructible digital ledger with respect to economic transactions that can be programmed to record not just financial transactions but virtually everything of value. Data can be sent across a network securely by implementing blockchain's ledger methodology and cryptographic techniques. The technique will ensure that the data is from the correct sources and that there are no interim obstructions interim. If this technology is used more widely then the probability of hacking can be decreased.
In contrast to conventional centralized data management system, blockchain technology integrates data in a unique ledger while maintaining consistency even with a decentralized management. The benefit of decentralized control is that it eliminates the risks of centralized control. With a centralized database, anybody with sufficient access to that database can destroy or corrupt the data within. Therefore, no centralized version of this information exists for a hacker to corrupt. Hence, decentralization is the essence and strenght of blockchain technology.
With the increasing popularity of cryptocurrency and other block chain/public ledger system based applications, block chain technology is attracting a lot of attention. The growth in prices of cryptocurrency is evidence of popularity of block chain technology. With increasing popularity of technology, there is a steep rise in filing of patent applications claiming invention based on block chain technology.[1] The innovators of block chain technology are still confused about patentability of inventions based on block chain technology.
Generally, inventions covered in patent application are required to satisfy the test of novelty, non-obviousness and industrial applicability. There is no doubt about industrial applicability of block chain technology in areas like cryptocurrency, logistics, asset management, insurance, peer to peer lending platforms, Internet of Things, etc. Hence, the main issues in determining patentability of block chain-based inventions are:
Whether the invention is anticipated by prior art (patent literature or non-patent literature published before filing of patent application) or product already in use or offered for sale before filing date?
Whether invention is obvious to person ordinarily skilled in the art looking at state of art or closest prior art?
With respect to the first issue, there are assumption in the industry that block chain technology per se has limited novel features because innovators are merely using existing technology for making transactions.[2] However, the implementation of technology at large scale has posed new challenges and problems. There is no doubt that block chain technology in its current form needs improvement considering high power usage, latency in execution of transaction, inefficiency in storage of records, efficient distribution of proof of work among miners, etc. This provides innovators in the field of block chain with opportunity of coming up with new solutions.[3]
With respect to second issue, it needs to be examined whether new techniques proposed for improving efficiency or security in block chain technology implementing public ledger system are similar to one existing in traditional platforms other than block chain (existing applications like electronic payment systems and other fin-tech technology) and whether it is obvious for person ordinarily skilled in the art to apply same technique in block chain technology. In such evaluation of similarity of proposed invention with existing technology, the focus should be whether such existing (known) platform is independent of trusted central entity for validation which is key feature of block chain technology. If the inventive feature of proposed inventions are implemented in existing platforms which is independent of trusted central entity, then proposed invention will not be considered patentable being obvious to person skilled in the art.
Apart from novelty and non-obviousness, the other key issue involved in patentability of block chain technology which is implemented as software platform is whether invention will be considered as patentable subject matter under Section 3(k) of Indian Patent Act which prohibits patentability of computer programme per se, algorithm, business methods, etc. The parallel provisions under US patent law is 35 USC Section 101 which prohibits patentability of business methods and abstract ideas.
In November 2008, Bitcoin's creator, known by the pseudonym Satoshi Nakamoto, published a paper via the Cryptography Mailing List titled "Bitcoin: A Peer-to-Peer Electronic Cash System" where he described blockchain. The bitcoin network is in operation since 2009 and qualified as "prior art" hence it is against any new attempt to get patented but important additions and variations which results in new utility can be patented.
In Alice Corp v CLS International[4], US Supreme Court held that computer implemented methods of assessing settlement risk in financial transaction are ineligible for patent protection, and that laws of nature, natural phenomena, and abstract ideas are not patentable because they are "the basic tools of scientific and technological work.
Such limitation may create prejudice against block chain technology in fin-tech industry considering its implementation as method for performing financial transaction. However, the invention covering techniques which improves functionality of technology, processes or security of payment system may be considered eligible for patentability.[5]In addition, where the invention is merely proposing the use of existing block chain technology with new business model, the proposed invention will not be considered patent eligible subject matter.[6]
Further, the claims for patent application claiming block chain technology-based inventions need to be drafted considering that such platforms involve multiple parties (e.g. in case of cryptocurrency, miners implement validation of public ledger records, cryptocurrency exchange provide platform for trade of cryptocurrency, cryptocurrency wallet manufacturers provides security solution for cryptocurrency traders) and all components of the invention might not be implemented by each party. Therefore, separate independent claims need to be drafted for each of the prospective invention keeping in mind entities involved in implementation of technology. Alternatively, separate patent application can also be filed for separate inventions, if these inventions are unique and distinguishable.[7]
Looking at complicated legal and technical issues involved in patentability of block chain technology, there is a need to develop and train legal practitioners in this specialized area so that innovators are provided with quality legal advice. Further, most of the innovators do not show interest in patent protection because they consider this technology as more suitable for open source. The innovators need to be made aware that patent protection can also be used as defense against infringement action filed by competitors. Therefore, the innovators in the field of block chain technology needs to be proactive when it comes to filing patent applications for improved techniques and systems.
PCT rules amendment on fee reduction
According to an amendment to the regulations under the Patent Cooperation Treaty (PCT) adopted by the Assembly of the International Patent Cooperation Union (PCT Union) on September 30, 2014, at its Forty-Sixth (27th Extraordinary) Session, with effect from July 1, 2015, a revised schedule of fee structure is provided. As per amendment to the PCT Schedule of Fees, the 90% fee reductions in item 5 of the Schedule of Fees is applicable, if the international application is filed by:
an applicant who is a natural person and who is a national of and resides in a State that is listed as being a State whose per capita gross domestic product is below US$ 25,000 (according to the most recent 10-year average per capita gross domestic product figures at constant 2005 US$ values published by the United Nations), and whose nationals and residents who are natural persons have filed less than 10 international applications per year (per million population) or less than 50 international applications per year (in absolute numbers) according to the most recent five-year average yearly filing figures published by the International Bureau; or
an applicant, whether a natural person or not, who is a national of and resides in a State that is listed as being classified by the United Nations as a least developed country;
Provided that, if there are several applicants, each must satisfy the criteria set out in either sub-item (a) or (b).
Further, as per understanding adopted by the PCT Assembly, which became effective from October 11, 2017; the above stated 90% fee reduction would be applicable only to those applicant(s) who are the sole and true owners of the application and are under no obligation to assign, grant, convey or license the rights in the invention to another party which is not eligible for the fee reduction.
Hence, only if the PCT international application is filed by the sole and true owners of the invention satisfying the criteria set out in either sub-item (a) or (b) of item 5 of the Schedule of Fees, the 90% fee reduction is allowed. In case, the request for such fee reduction is filed by the assignee or other party on behalf of the sole and true owners of the PCT international application, such fee reduction shall not be allowed if such party is otherwise not eligible for the fee reduction.
India: Delhi High Court awards damages worth 10 Lakhs for Patent Infringement
The Hon'ble Delhi High Court in a recent judgement in the case of, Vior (International) Ltd. & Anr. v. Maxycon Health Care Private Ltd., held that the acts of the Defendants for unauthorized manufacturing and selling of patented product amounts to infringement of Plaintiffs rights granted under Section 48 of the Patents Act, 1970. Further, the act of the Defendants of blatantly copying the content of Plaintiffs website is in violation of the copyright vested with the Plaintiffs and amount to infringement as per Section 51 read with Section 14 of the Copyright Act, 1957.
Vior (International) Ltd. (hereinafter referred to as 'the Plaintiff No. 1'), a Switzerland based company, are exclusive owners of registered Indian Patent no. 221536, a product by process patent on Ferric Carboxymaltose, a novel water-soluble iron carbohydrate complex prepared by a novel process. The patented product is useful in the intravenous treatment of iron deficiency when oral iron preparations are ineffective or cannot be used. The Plaintiff 1 has granted a licensee to Plaintiff 2, a company incorporated under the Companies Act, 1956, for the manufacture and commercialization of above patented product, in India. Further, Plaintiff 2 is the owner of the copyright with respect to literary work on website the www.emcure.co.in.
The Plaintiffs filed a suit for restraining the Defendants from infringement of Indian Patent No.221536; infringement of copyright in the literary work; dilution & tarnishment of brand image of the Plaintiffs; malicious falsehood; delivery up; rendition of accounts; damages etc. against the Defendants.
Further, the Plaintiffs pleaded that the Defendants are manufacturing and selling the impugned patented product and falsely represented on their website that the Plaintiff no.1 has given an IP license to the Defendant no. 1 to manufacture and commercialize the impugned patented product.
Still, further, the Plaintiffs pleaded that Defendant no. 1 has blatantly copied the literary write-up/content of the Plaintiff No.2s website www.emcure.co.in, thereby amounting to infringement of the copyright of Plaintiff No.2. Such activities of the Defendant no.1 also amounts to dilution of the brand image of the Plaintiffs thereby resulting in unlawful enrichment.
Furthermore, the Plaintiffs pleaded that the Defendant No.1, despite the operation of an ad-interim injunction against it, continued its infringing activities through the Defendant No.3 and under the able guidance of the Defendant No.2.
As none appeared on behalf of the Defendants despite service of notices hence the proceedings are treated ex-parte.
Whether the acts of the Defendants for unauthorized manufacture and sale of patented product amounts to infringement of Plaintiffs' patent rights?
Whether the act of the Defendant no. 1 for misrepresenting on the website as being an IP license holder of impugned patent amounts to infringement of Plaintiffs' patent rights?
Whether the act of the Defendant no. 1 for blatantly copying the content of the Plaintiff no. 2 website, amounts to infringement of Plaintiff no. 2's copyright?
The Plaintiffs relying upon the evidence of sole witness, Shri Pankaj Pahuja (PW1) and the documents Ex. PW1/1 to Ex.PW1/23, Ex PW1/B, Ex.PW1/A1 to Ex.PW1/A5 as well as Mark E to Mark H, argued that the act of the Defendants are nothing short of oppressive, arbitrary and unconstitutional.
The Plaintiffs' relying upon the decision by the Division Bench of Delhi High Court in paragraph number 69 and 70 of Hindustan Unilever Limited v. Reckitt Benckiser India Limited, 2014 (57) PTC 495 [Del] [DB] claimed for damages to the tune of INR 1,00,01,000 (USD 142861 approx.). The Plaintiffs have claimed the rendition of accounts of profit illegally earned by Defendants or in the alternate damages to the extent of INR 1,00,01,000 (USD 142861 approx.).
Further, for claiming the punitive damages, the Plaintiffs relied upon the case of Jockey International Inc & Anr. vs. R. Chandra Mohan & Ors. CS(OS) 253/2012, wherein it was held that one who chooses to stay away from the proceedings of the Court, should not be permitted to enjoy the benefits of evasion of Court proceedings. The damages in such case must be awarded.
Analysis by the Court on unauthorized manufacture and sale of patented product under misrepresentation as IP license holder
The Court while determining whether a patent has been infringed, took into consideration Section 48 of the Patents Act, 1970, and held that the act of the Defendants to deal with the impugned API clearly relates to the product Ferric Carboxymaltose as has been claimed by the Plaintiff No.1 in its independent claim 1. Further, such a product cannot be clinically effaceable without using the
process as claimed. The Court agreed with the Plaintiffs that the acts of the Defendants amount to infringement of the Plaintiffs' rights.
Analysis by the Court on blatant copying of literary work
The Court while examining the issue of copying of literary work, took into consideration Section 51 read with Section 14 of the Copyright Act, 1957, and held that the act of the Defendant No. 1 of blatantly copying the content of the Plaintiff No.2's website is in violation of the copyright vested with the Plaintiff No.2 and amounts to infringement of copyright by the Defendant No.1. The Court relied on the case of R.G Anand vs M/S. Delux Films & Ors. and held that the literary work of Defendant No.1 in its website is substantially similar to the content of the Plaintiff No.2, thus, such an adoption is mala fide and is with a clear intention on the part of the Defendant to save himself of the labour. Moreover, the acts of the Defendant No.1 in publication of a statement indicating a false association with the Plaintiff No.1 amounts to a tort of malicious falsehood.
The Court also relied on the decision of Rookes v. Barnard (1964) and awarded damages that is not merely to compensate the Plaintiffs for the loss that has been sustained by reasons of the Defendants' wrongful act, but also to punish the Defendants in an exemplary manner and vindicate the distinction between a willful and innocent wrongdoer.
Decision of the Court
The Court held that the act of the Defendants amounts to infringement of patent and copyright of the Plaintiffs. In view thereof, damages for a sum of INR 10,00,000 (USD 14284 approx.) in favour of the Plaintiffs and against the Defendants, is passed on account of infringing the registered marks, trade dress and violating interim order.
India: Delhi High Court clarifies on what is new and original under the Designs Act
Design is that aesthetic feature which adds the exclusive quality to the product. Any product can become visually appealing through its design. This is exactly what the Designs Act, 2000 (hereinafter referred to as 'the Act') protects i.e. the aesthetic appearance. Designs, as defined by the Act, is the 'features of shape, configuration, pattern, ornament or composition of lines or colors applied to any article in two or three-dimensional form, or both, by any industrial process or means – whether manual, mechanical or chemical, separate or combined – which in the finished article appeal to and are judged solely by the eye'. The Act also lays down the necessary parameters that are requisite conditions for a design to be registered under the Act. The very first and foremost condition is that the design should be new or original, not previously published or used in any country before the date of application for registration. Focusing on this criterion, recently, the Delhi High Court its judgement, in the case of Crocs Inc. Usa V Liberty Shoes Ltd. & Ors., on February 8, 2018, cancelled the registered design of Crocs Inc. USA and dismissed the claim of piracy of design made by the Company. The Court held that, 'it is necessary for protection of a registered design that the registered design must be an Intellectual Property Right created after application of sufficient time, labor, effort, etc. and that there must be sufficient newness or originality i.e. existence of requisite innovation and that trade variations of known designs cannot result in newness and originality.'
Brief Background
Crocs Inc. USA (hereinafter referred to as 'the Plaintiff') are proprietors of certain registered designs related to footwear in India. The registered design in issue in the case bear registration numbers 197685 and 198786.
In the plaint, the Plaintiff stated that Liberty Shoes Ltd. and others (hereinafter referred to as 'the Defendants') has been violating the rights of the Plaintiff by imitating its registered design shown above. It claimed piracy of design under Section 22 of the Act.
The Plaintiff filed a suit for permanent injunction against all the Defendants from manufacturing, marketing, supplying, using, selling, soliciting, exporting, displaying, advertising by any other mode or manner the impugned design or any other design which is deceptively similar to or is a fraudulent and/or any obvious imitation of the Plaintiff 's design.
The Plaintiff also filed interim applications seeking pendente lite restraint against the Defendants from manufacturing, marketing, supplying, selling etc. the footwear of the Defendants which footwear as per the Plaintiff have been manufactured and sold by infringing the registered designs of the Plaintiff.
The Defendants challenged the interim injunction application.
Whether the registered designs, of the Plaintiff, lacked novelty and originality?
Whether the registered designs existed in public domain prior to the registration being granted in favor of the Plaintiff?
Whether the Defendants are guilty of piracy of designs?
The Plaintiff alleged that the footwear manufactured by the Defendants were more or less same or similar, with color variations or other changes with respect to placements of the perforations/open spaces/holes in the footwear or certain other aspects for creating visual appeal.
With regard to the website evidence filed by the Defendant in pursuance of issue no. 2, it argued that depiction in the website is no guarantee that depiction of the footwear in question in fact took place as on December 10, 2002, as stated in the printouts downloaded and filed by the Defendants.
The Plaintiff contended that once the registration is done, there must be a presumption of newness and originality and the onus should be on the Defendant to prove that there is no newness or originality.
They contended that the registration of design with respect to footwear is in itself invalid. Taking defence under Section 22 (4) of the Act, they argued that since the registration of the design granted to the Plaintiff is not valid, hence no case could be made out of piracy of the registered design of the Plaintiff.
They further claimed that the registered design of the Plaintiff's when registered lacked any newness/originality. The design was in public domain at the time of registration.
To prove issue no. 2, the Defendants produced the internet-downloaded pages from the website of the company 'Holey Soles', the footwear designs of which were similar to that of the Plaintiff. The designs on the page were stated to be archived on the page since December 12, 2002. The 'Holey' in the 'Holey Soles' is because of holes/spaces/gaps existing in the footwear of this company.
It was submitted that the registration date granted to Plaintiff in India was May 28, 2004. Since, the design of the footwear of the Plaintiff was found in the public domain since 2002, therefore, the registration granted to the Plaintiff was clearly faulty and liable to be cancelled under Section 19 of the Act.
The Court analyzed Sections 2 (d), 4, 19 and 22 of the Act.
Regarding issue no. 1, the Court went on to evaluate the meaning of a design being new or original. The Court revisited its judgement in Pentel Kabushiki Kaisha & Anr. Vs. M/S Arora Stationers & Ors., and held that mere variations to existing products which do not result in requisite amount of newness or originality cannot be considered as innovations having newness and originality for being granted monopoly for fifteen years.
Further adducing the test of newness and originality, the Court held that it is necessary for protection of a registered design that the registered design must be an Intellectual Property Right created after application of sufficient time, labor, effort, etc. and that there must be sufficient newness or originality i.e. existence of requisite innovation and that trade variations of known designs cannot result in newness and originality.
Dealing with issue no. 2, the Court reiterated that according to Section 19 of the Act a design, which existed in the public domain prior to grant of registration under the Act, is a ground for cancellation of the design. Rejecting the contentions of the Plaintiff, the Court prima facie accepted that such design existed in public domain prior to Plaintiff's registration, the Plaintiff therefore, cannot claim exclusivity for its registered design merely on the ground that Plaintiff 's footwear/registrations does have a strap at the back of its footwear.
The Court opined that in cases where the registered design is associated with something so common to human lifestyle, for example in this case footwear, the bar of newness and originality automatically increases. It said that it requires an effort larger than an ordinary effort to create a different footwear than the known types of footwear, to be an innovation/creation having such requisite newness and originality for that creation to become an Intellectual Property Right as a design in terms of the Designs Act.
In the present case, in Court's view the design of Plaintiff's footwear is nothing but a sandal. Sandal with open spaces are only trade variations of a sandal. Trade variations of footwear/sandals cannot be and should not be given exclusive monopoly. In addition, the features which were argued on behalf of the Plaintiff, as existing in its sandals/footwear of mounds or humps or straps (or lack of them) or soles designs or perforations/open spaces etc., even when taken as a whole, or even individually for that matter, cannot be said to result in innovation or creation of newness or originality.
The Court also assessed the claim of cost payable to the Defendants. Taking into consideration the Commercial Courts Act, 2015, read with Section 35 of the Code of Civil Procedure, the Court held that 'the Court had the power to order costs at the interim stage, and that, in this case, the Plaintiff, in refusing to settle the interim applications with the Defendants, and 'obdurately and illegally continuing proceedings', and imposed costs of a whopping INR 2 lakhs per Defendant, in addition to legal costs'.
Alteration to the definition of a Startup – a relief for the Biotech Sector
The Department of Industrial Policy and Promotion (DIPP), under aegis of the Union Ministry for Commerce and Industry, has recently brought up a revised definition of start-ups.
The new definition according to DIPP notification shall now recite as :
"An entity shall be considered as a start-up up to a period of seven years from the date of incorporation/registration, if it is incorporated as a private limited company (as defined in the Companies Act, 2013) or registered as a partnership firm (registered under Section 59 of the Partnership Act, 1932) or a limited liability partnership (under the Limited Liability Partnership Act, 2008) in India".
In reference to the biotechnology sector including medical device, the period shall be up to ten years from the date of its incorporation/ registration. The sudden increase has been made on the very fact that the companies in these two sectors take longer development process to mature.
Further, the notification revealed that the turnover of any entity for any of the financial years since the incorporation should not exceed INR 250,000,000 and that the entity should be working towards innovation, development or improvement of products or processes or services, or if it is a scalable business model with a high potential of employment generation or wealth creation.
An entity formed by splitting up or reconstruction of an existing business shall not be considered a 'start-up'.
Going forward, a start-up being a private limited company, or a limited liability partnership incorporated on or after 1st day of April 2016, but before 1st day of April 2021, can claim 100% tax exemption on profits for three out of seven years, as per the prescribed norms. There is also a provision of tax relief for issue of shares by start-ups over the fair market value, with certain conditions. However, for availing the tax relief for issue of shares over the fair market value, the aggregate amount of paid-up share capital and share premium of the start-up should not exceed 10 crores.
2018 – A year in Copyright
India: Copyright Office issued Practice and Procedure manual, 2018
In an endeavor to improve transparency and speedy disposal of applications, the Copyright Office has published on its website the Practice and Procedure Manual for examinations of applications in respect of literary, artistic, musical, cinematograph film and sound recording works vide public notice dated April 27, 2018.
The Public Notice dated April 27, 2018 can be accessed here.
The Copyright Office through a public notice dated February 27, 2018 published draft guidelines on its website in respect of the aforementioned works for inviting reviews and comments from all stakeholders.
After taking into consideration relevant suggestions received from the stakeholders, the Copyright Office has published Practice and Procedure Manual, 2018 for examinations of applications.
The Practice and Procedure Manual for examinations of applications in respect of –
Artistic work can be accessed here.
Literary Works can be accessed here.
Cinematographic Films can be accessed here.
Musical Work can be accessed here.
Sound Recordings can be accessed here
India: Cabinet approves accession to WIPO Copyright Treaty, 1996 and WIPO Performance and Phonograms Treaty, 1996
On July 4, 2018, the Union Cabinet chaired by Prime Minister Narendra Modi approved the proposal submitted by Department of Industrial Policy and Promotion, Ministry of Commerce and Industry to accede to the WIPO Copyright Treaty, 1996 (hereinafter referred to as "WCT") and the WIPO Performance and Phonograms Treaty, 1996 (hereinafter referred to as "WPPT") which extends coverage of copyright to the internet and digital environment.
Becoming a member of WIPO in 1975 and complying to a number of treaties administered by WIPO, India has not become a party to either of the Internet Treaties till date. The treaties will become binding upon India once the Instrument of Accession is deposited with the Director General of WIPO.
WIPO COPYRIGHT TREATY, 1996
WCT came in force on March 6, 2002 and has been adopted by 96 contracting parties till date and is a special agreement under Berne Convention (for protection of literary and artistic works). It has provisions to extend the protection of copyrights contained therein to the digital environment. Further it recognizes the rights specific to digital environment, of making work available, to address "on-demand" and other interactive modes of access,
WIPO PERFORMANCES AND PHONOGRAMS TREATY, 1996
WPPT came in force on May 20, 2002 and has 96 contracting parties as its members. WPPT deals with rights of two kinds of beneficiaries, particularly in digital environment:
Performers (actors, singers, musicians etc.)
Producers of Phonograms (Sound recordings)
The treaty empowers right owners in negotiations with new digital platforms and distributors. It recognizes moral rights of the performers for the first time & provides exclusive economic rights to them.
BENEFITS OF WCT & WPPT TO INDIA:
To enable creative right-holders enjoy the right of their labor, through international copyright system that can be used to secure a return on the investment made in producing and distributing creative works;
To facilitate international protection of domestic rights holder by providing them level-playing field in other countries as India already extends protection to foreign works through the International Copyright order and these treaties will enable Indian right holders to get reciprocal protection abroad;
To instill confidence and distribute creative works in digital environment with return on investment; and
To spur business growth and contribute to the development of a vibrant creative economy and cultural landscape.
India: Protection of Commercial Cinematographic rights under Copyright Act 1957
Recently, the Madras High Court in the case of Kajal Aggarwal vs The Managing Director gave a decision based on the infringement of Cinematographic rights of an artist under a contract which is not enforced under Copyright Act, 1957 in India. The Court held that V.V.D.& Sons Pvt. Ltd were the first owner of an advertisement featuring actor Kajal Agarwal and rejected the actor's plea that the company should be restricted to use the commercial only for one year.
Kajal Aggarwal (hereinafter referred to as 'the Plaintiff') is a renowned actress in India.
V.V.D. & Sons Pvt. Ltd (hereinafter referred to as 'the Defendant') approached the Plaintiffs to support their products to be marketed.
The terms of promotional participation were finalized after mutual negotiations between the parties. The Plaintiff agreed to subject herself to be available to shoot the required materials to use the same for the advertisements of the Defendant.
The parties entered into the agreement on December 29, 2008.
The Plaintiff alleged that the Defendant was to use the advert for only a year but had done so beyond that period from 2008. Aggrieved by the act, the Plaintiff filed a suit before the Madras High Court (hereinafter referred to as 'the Court')
Whether the Defendant was restricted to use the profile of the Plaintiff only till the period authorized in the agreement?
Whether the Defendant exceeded the commitment and violated the condition in advertising their products with the appearance of the Plaintiff's profile to cause prejudice?
Whether or not the Defendant is the owner/author of the copyright in the commercial (cinematographic) film as per Section 17 of the Copyright Act, 1957?
Is the term of the copyright in the commercial (cinematography) film, 60 years as stipulated under Section 26 of the Copyright Act?
It was submitted that the Plaintiff completed the shooting and photo sessions for two full days.
However, it was alleged that the Defendant did not keep up their commitment and violated the terms on which the Plaintiff agreed to extend her profile for the promotion of their business.
It was also alleged that all the terms, which were agreed upon, were not incorporated with the full text in the agreement prepared and brought with the signature of the Defendant to subscribe the signature of the Plaintiff.
It was submitted that the Plaintiff made specific protest to incorporate all the agreed terms.
It was further alleged that the Defendant had included by hand written words in clause 2 of the terms of agreement to restrict the advertisements to the geographical limits of Tamil Nadu and Andhra Pradesh only.
It was promised by the Defendant to prepare and send the proper text with agreed conditions, but, they failed to do so.
It was contended that the Defendant started using the advertisement materials with Plaintiff's profiles for their product's marketing even before furnishing the corrected agreement and the subscription of the signatures on either side and on coming to know the same, the Plaintiff had protested, and the Defendant promised to rectify the issue.
It is contended that despite knowing, the Defendant continued to exploit the popularity of the Plaintiff through their advertisement materials without giving regards to the terms of agreement agreed to between the parties.
It denied breaching the agreement between him and the Plaintiff regarding the promotion of the products.
It was alleged that when the ad film for coconut oil was made, the Plaintiff was only an ordinary model and she became an actor in films later.
It was submitted that the Plaintiff was paid remuneration a of INR 3,00,000 (USD 4292) for the ad film. It is denied that any geographical limit was agreed upon for advertising the product using the Plaintiff's name, image, etc.
It also denied promising to prepare and send a revised text of the agreement.
It submitted that it had been using the advertisement material in accordance with the agreement and not in violation to the terms of the agreement.
It also submitted that it holds copyright over the ad film and all rights in the said film vested with the Defendant. The Plaintiff has no right over the same, since she was paid the sum demanded by her for acting in the said ad film.
Court's Decisions
The Court noted that with respect to an Ad film for promoting the products of the Defendant, the Plaintiff and the Defendant entered into an agreement on December 29, 2008. Also, it is not disputed also that the Plaintiff has been paid a sum of INR 3,00,000 (USD 4292) for completing the shooting of the Ad film.
Regarding the Defendant being the first owner of the copyright, the Court held that 'the Defendant being the employer and having utilized the services of the Plaintiff for promoting their products through the ad film, the Defendant shall be the first owner of the copyright thereof in the absence of any agreement to the contrary.'
On the question of the period for which the advert could be used, the Court held that 'A person who becomes the first owner of the copyright for his entire work, has been conferred with a statutory right for a period of 60 years over the cinematograph of the film. This statutory right cannot be taken away by a performer in the cinematograph film by virtue of an agreement. Hence, we hold that the Defendants entitled to exploit the work for the entire term prescribed under Section 26 of the Copyright Act and is not restricted for a period of one year by the agreement.'
Further rejecting the argument of compensation for using the promotional material beyond the period of one year, the Court held that 'there are absolutely no materials for this Court to award compensation to the Plaintiff in this case. Once she consented to incorporate her performance as an action in the film, she cannot stop the Defendant from enjoying the right of producer.'
India: Delhi High Court on the Copyright on Photographs uploaded on Facebook
In a recent order, in the case of Fairmount Hotels Pvt. Ltd. vs. Bhupender Singh[1], the Hon'ble Delhi High Court has recognized copyright on photos uploaded on Facebook. The Hon'ble Court while adjudicating the dispute over copyright on the photographs of the Plaintiff's hotel, decided in favor of the Plaintiff as the Defendant did not raise any objection against the contended rights of the Plaintiff over the photographs.
The conflict arose in 2015 when the Fairmount Hotels Pvt. Ltd. (hereinafter also referred as "Plaintiff") came across a Facebook page of Mr. Bhupender Singh (hereinafter also referred as "Defendant") which displayed the pictures of the Plaintiff. Thereafter a suit for infringement of copyright of the Plaintiff on the photographs used by the Defendant was filed before the Hon'ble Delhi High Court. The Plaintiff claimed the act of the Defendant as fraud and use of unfair means to attract the innocent people in disguise of the Plaintiff. The Defendant was an ex-employee of the Plaintiff and after serving the Plaintiff for about 4 years, opened a hotel of his own in Manali by the name of Mountain Inn, and in order to promote his hotel posted the photographs of the Plaintiffs hotel on his Facebook page.[2]
In the original suit filed in 2015, CS (OS) 2574 of 2015, the Plaintiff made a move for ex parte interim order and in CS(COMM) 111 of 2018, the Plaintiff sought permanent restraint on the Defendant, to use the photographs of the Plaintiff's hotel.
The Plaintiff submitted:
That they are a better-known hotel in Shimla and have substantial goodwill in the Shimla region.
That they managed their business and were known in the public through their website www.fairmountindia.com, which showcased several photographs of their hotel.
That the Plaintiff has exclusive copyright on the name as well as on the website and further submitted that the trademark registration application by the Plaintiff is pending since 2006.
That the act of the Defendant to showcase the photographs of Plaintiff on the facebook page of Defendant, is to mislead the innocent persons to believe that the Plaintiff's hotel is same as that of the Defendant and further argued that the Defendant intends to exploit the goodwill of the Plaintiff to promote the business of the Defendant.
In view thereof, the Plaintiff in the original suit, sought an ex parte injunction against further misuse of the Plaintiff's copyrighted photographs on the Defendant's facebook page. Further, the Plaintiff submitted, as evidence, photographs of the hotel and the photograph used by the defendant on his facebook page.
Evidence – Photographs
The Defendant submitted:
That pursuant to the ex-parte ad interim order dated August 28, 2015, the Defendant had removed all the Plaintiff's photographs from its Facebook page.
An undertaking that the Plaintiff's photographs shall not be re-posted on the Defendant's Facebook page.
COURT OBSERVATION
For Ex-parte ad interim injunction dated August 28, 2015 by Hon'ble Justice Najmi Waziri
The Court observed that the Plaintiff was able to establish prima facie case for ex-parte ad interim injunction and further observed that the Plaintiff's rights and interest would be irreparably prejudiced, if such interim order is not passed also considering that the balance of convenience also falls in favor of the Plaintiff. Therefore, the Defendant was restrained from using the Plaintiff's photographs on his Facebook page at the interim stage.
Final Order dated April 05, 2018 by Hon'ble Justice Manmohan
On the suit for permanent injunction for restraining the Defendant from using the photograph of the Plaintiff's hotel on his Facebook page claiming copyright on the said photographs, the Hon'ble court accepted the submissions/ undertaking by the Defendant and on a request of cost by Plaintiff and after considering the financial condition of the Defendant, directed the defendant to pay a cost of INR 50,000 to Plaintiff.
In the original suit, the Plaintiff argued exclusive copyright over their website and contents thereto, however, the Court did not comment on the copyright-ability of a website.
The Copyright Office, as per the information available on the website and vide orders passed by Learned Registrar of Copyright, is of the opinion that a website as a whole is not subject to copyright protection, however, some component of the website which fall within the ambit of literary, artistic, sound recording and cinematograph films under the Copyright Act, 1957 are protectable under such independent categories vide separate application filed in this regards.[3] It is further noted that the website contains various non-copyrightable content particular to websites may include but are not limited to ideas or future plans of websites, functional elements of websites, unclaimable material, layout and format or 'look and feel' of a website or its webpage; or other common, unoriginal material such as names, icons or familiar symbols.[4]
The debated question in such a situation is "Should "look and feel" of a website be covered as copyright-able subject matter?"
The "Look and Feel" of a website is the creativity of the website holder that ensures unique components of the website so as to be attractive and user friendly. The look and feel of a website is not a fixed feature but variable as per the requirement of the website holder. This variable feature can be modified and incorporated in the website in order to be associated completely with a specific proprietor/ brand or associated with particular website.
In Internet era, a website is essential to distribute information, to attract public attention and to act as a platform between the website holder and its customer/clients. In such a situation, the 'look and feel' of the website makes the first impression to the customer, and therefore, the efforts taken by the website holder to create unique 'look and feel' is ideally creativity and therefore copyright-able subject matter. It is important to note that with time the companies are making major investments on web portal for communication with the public, and this communication includes various trademark, product information, fonts and design of contents, effects and animation using the brand/ trademark etc.
With the launch of new products / services of a company, the website is the first platform updated for public access. This motivates the company to emphasize more on the overall features of the website which may attract more attention and publicity. Even major brands are using their trademark as background image for the website, using the color combination of the trademark (if any) and/or using a specific animation/ combination of color and font etc. With the focus of companies on attracting more public attention on their website, the 'look and feel' is ought to gain consideration to determine association with a brand. In such circumstances, it is a fair opinion to consider 'look and feel' of the website as copyright-able.
As software works are protected separately under the software category, similarly a provision for protecting the look and feel of the website can be considered under a separate category for website. Considering the competition between the rival companies, the website is the most effective medium to promote the business and goodwill of a company. The Copyright Office has also considered the copyright-ability of an APP under software category subject to submission of source and object code as provided under Rule 70 (5) of the Copyright Rules 2013. It is important to note that the registration of an APP covers any screen displays generated by that program, provided that the computer program (code) generating the screen display is submitted by the applicant. Therefore, if registration of APP through it source code and object code, is eligible to protect the screen display which basically is the 'look and feel' of the APP, then even the programming and coding causing the 'look and feel' of the website must be considered as copyright-able subject matter.
India: Delhi High Court on Original work under Section 13 of the Copyright Act
Copyright is a legal right which provides protection to the original creations of human mind and intellect. Artistic work is a form of work over which copyright is available. The word "artistic" is commonly thought of pertaining to a painting or a sculpture, however, there are various other forms which are recognized by the Copyright Act, 1957.
Section 2(c) of the copyright act defines "artistic work" as,
a painting, a sculpture, a drawing (including a diagram, map, chart or plan), an engraving or a photograph, whether or not any such work possesses artistic quality;
a work of architecture; and"
any other work of artistic craftsmanship;
Therefore, to qualify as an artistic work, the work need not possess high quality of art. A work can be artistic even with de minimus artistic quality. However, the work must be an original expression of thought i.e. the work must have "originality" to qualify as an artistic work under the Copyright Act. The expression in the work should be the result of application of skill and judgement on the part of the artist creating the work, that is, the artist must have applied more than some mere mechanical exercise in order to create the work.
Recently, the Delhi High Court in the case of, Marico Ltd vs. Mrs. Jagit Kaur, has allowed the rectification application of Marico Ltd (hereinafter referred to as the "Appellant") holding that the artistic work for the label of Mrs. Jagit Kaur (hereinafter referred to as the "Respondent") "NIHAL UTTAM" is not an original work under section 13 of The Copyrights Act, 1957. It was held that the Respondent's said label is a substantial reproduction and a colorable imitation of the Appellant's "NIHAR COCONUT OIL".
The Appellant's trademark "NIHAR" has been registered in India since 1994 and has been in use for several years with respect of coconut oil and the label that has been used, has the primary colour scheme of green, yellow and white with the representation of two coconut trees. Over the years there were certain amends but the basic structure and the colour scheme remained the same.
In 2008, the Appellant came across the Respondent's copyright registration. It was alleged that the copyright as an "artistic work" was first published in 2002 whereas it was registered in the year 2003.
It was further alleged that the Respondent's copyright had several similarities with the Appellant's label.
Thus, an application had been preferred by the Appellant to the Copyright Board under Section 50 of The Copyrights Act, 1957, seeking rectification i.e. removal of the Respondent's registration from the Register of Copyrights.
The rectification petition was dismissed on April 21, 2008 and the present appeal assails the said order.
Whether the Respondent's copyright is an "original" artistic work?
Whether the Appellant is entitled to having the Respondent's copyright removed on the grounds of it being similar to the label?
Copyright Board's Observations
It was observed that the allegation of copying is in a very general form and no specifics of the attributes of copying have been explained.
It was further observed that the words "NIHAR" & "NIHAL" owe their roots to different languages having distinct meanings. "NIHAR" is a word of Sanskrit origin, whereas "NIHAL" owes it's origin to Persian.
It was stated that arguments in the nature of class of goods and nature of business of the Petitioner and Respondent being similar and so there being degree of confusion and deception have a prominent role in determining a matter relating to the rights of a trade mark. In matter of copyright, lackness of the originality of the work is the touchstone.
The Appellant claimed that the comparative features of the two labels are so similar that "NIHAL UTTAM" label can safely be termed as colorful imitation or substantive reproduction.
It was claimed that the color scheme between the two labels is the same
It was further claimed that the manner in which the coconut tree is arranged is the same, the arrangement of two broken coconuts is similar.
It was contended that due to the long user in the market, the Appellant's label was quite extensively used and hence the Respondent had access to the Appellant's label. Evidence was presented by the Appellant in the form of various documents to support the contention.
The proviso to Section 45 states that before an application of copyright registration in artistic work is allowed, a no objection certificate has to be obtained from the Registrar of Trademark. The same has been submitted by the Respondent.
The following evidence has been submitted in the form of documents-
Copies of packaging of TATA NIHAR since 1995
Economic Times dated 27th April, 2002 about the market share of TATA NIHAR.
Deed of assignment dated 10th September, 1997 between Ajit Upasham, and the predecessor of the Appellant assigning the copyright to the Appellant's predecessor.
Second deed of assignment dated 25th August, 2001 for several variations of NIHAR label.
The Court observed that a perusal of the labels clearly shows that the Respondent's artistic work "NIHAL UTTAM" is not an original artistic work but an imitation of the Appellant's label. The Respondent's label is a substantial reproduction and a colorable imitation of the Appellant's "NIHAR COCONUT OIL". The Appellant is thus a person aggrieved and is entitled to maintain the petition under Section 50 of the Copyright Act 1957.
The Court in the order stated that the color scheme between the two is same, further the manner in which the coconut tree and the broken coconuts are placed is the same.
The documents submitted by the Appellant sufficiently show that the label was available earlier in the market. The Appellant's products were openly advertised and have substantial sale in the market. Clearly the Respondent is in a position to know about its existence and copy the same.
It further held, that the Copyright Board was concerned with the artistic features in the label and not the trademark, hence, the rejection of the rectification application on the ground that the words are from different origin is contrary to law.
Thus, the appeal is allowed.
The Court, in this case, has reiterated the qualification for a work to be artistic i.e. original thought. This is one of the aspects of copyright in the absence of which the same may not be registered. The case thus provides that lack of originality is the touchstone of rectification petition. The Court held that "any entry made of a work which is not an original work would be an entry wrongly made in the Register". This implies that similarity with an already existing trademark, provides an important basis for rectification of copyright register thereby cancelling the registration of the said artistic work.
2018- A year in GI
India: Madurkathi of West Bengal Gets a Geographical Indication (GI) Tag
Madurkathi are mats woven from a locally available soft reed called "Madur kottir". Madur is the Bengali vernacular for floor mats. Mats are an integral part of Bengal's lifestyle. Madur is a tradition and pride of Medinipur district of West Bengal. Usually, women of the households are involved in weaving this beautiful craft. With change in the requirement of the market, the mats are now also used for making decorative and utilitarian items. Madurkathi is locally available and is found abundantly in the alluvial tracts of East and West Medinipur districts of West Bengal.
On March 28, 2018, the Government of West Bengal, was granted Geographical Indication (GI) Tag for 'Madurkathi' vide registration no. 567 in respect of handicrafts. The application of registration of Madurkathi was filed by The West Bengal Khadi & Village Industry Board, Government of West Bengal. Madurkathi mats are popular and beneficial for the sitting as well as bedding purposes. The non-conducting property and ability to absorb sweat makes the mat a necessity household item in the hot and humid climate of West Bengal. These mats are also used for religious purposes.
The Government of West Bengal has previously secured registrations for handicrafts products. Details thereof are as under:
Government of West Bengal
Registration No. Geographical Indications
52 Nakshi Kantha
104 Santiniketan Leather Goods
138 Santipore Saree
173 Baluchari Saree
176 Dhaniakhali Saree
453 Bankura Panchmura Terracotta Craft
563 Bengal Dokra
564 Bengal Patachitra
565 Purulia Chau Mask
566 Wooden Mask of Kushmandi
India: Gobindobhog Rice gets a Geographical Indication (GI) tag
Other than Rosogolla, the Government of West Bengal, earlier last year in September earned itself another Geographical Indication (GI) Tag in Gobindobhog Rice. The rice is a native, aromatic, non-basmati premium variety rice from West Bengal. The cultivation of it is as old as 300 years in the area. It is short white grains, sticky rice having a sweet buttery flavor and pleasant aroma. It derives its name from principal ingredient used in preparation of offerings to Govindajiu, the family deity of Setts of Kolkata.
The application for the GI tag was filed by the State Government of West Bengal in August, 2015. The Gobindobhog Rice is the specialty of Burdwan district of West Bengal. Because of this variety of rice, the region is also known as the rice bowl of West Bengal. The rice is predominantly cultivated in the east Burdwan district – in the southern basin of the Damodar River in the Raina 1, Raina 2 and Khandaghosh blocks. It was cultivated in an area of 35 hectares last year. Of this, 20 hectares were spread over of Raina 1 and Raina 2 blocks. The special features of this variety of rice is that it is cultivated late, after the rainy season, and therefore it is affected very little by it and is less prone to pests. The price and productivity of the rice is high compared to other varieties of rice.
The state government is celebrating the GI tag as they are now assured that different variety of rice from the same region cannot be branded as 'Gobindobhog Rice'. Also, the marketability of the Gobindobhog Rice in the domestic and international market would be strengthened, resulting in better profits for the state and more importantly for the stakeholders in general.
India: Banaganapalle Mangoes Gets a Geographical Indication (GI) Tag
Andhra Pradesh tasted the sweetness of its Banaganapalle mangoes as it finally got the Geographical Indication (GI) tag this year in the May after a long wait of 100 years.
The tag was given by the Geographical Indications Registry, Chennai after an application from the Horticulture Commissioner, Andhra Pradesh was filed. The 'King of fruits' i.e. Banaganapalle mangoes is now officially owned by the State Government of Andhra Pradesh. The logo decided by the Government features a bright yellow fruit around which the tagline says "Banganappalle Mangoes of Andhra Pradesh," with images of a man and a woman appearing to be farmers. Anyone from now on to sell or produce these must first apply to become authorized users and would require a no-objection certificate (NOC) from Andhra Pradesh Government's horticulture Department.
The fruit is also known by a variety of monikers like Beneshan, Baneshan, Benishan, Chappatai, Safeda, Banaganapalli, Banginapalli, Banaganapalle, etc. The highlight of the fruit is that it can preserve its quality under cold storage up till three months. The documents submitted to the Registry stated 'The prominent characteristic of Banganapalle mangoes is that their skin has very light spots, stone is oblong in shape and has very thin seed with sparse and soft fiber all over'.
The Government also stated the primary center of origin to be Kurnool district comprising Banaganapalle, Paanyam and Nandyal mandals and Khammam, Mahabubnagar, Rangareddy, Medak, Adilabad districts in Telangana as secondary centers of origin. According to an affidavit furnished in 2011, Rani Kumudini, the then Andhra Pradesh Commissioner of Horticulture, stated that nearly 7,68,250 families were involved in the production of Banaganapalle mangoes. An estimated 24.35 lakh metric tonnes of mangoes were grown every year in Andhra Pradesh and about 5,500 tonnes of Banganappalle mangoes were being exported annually to countries like the U.S., U.K., Japan and the Gulf nations.
2018 – Coffee with HR
S.S. Rana & Co., celebrates Indian Constitution Day with much Enthusiasm
"Constitution Day, also known as Samvidhan Divas, is celebrated in India on 26 November every year to commemorate the adoption of Constitution of India. On this day in 1949, the Constituents Assembly of India adopted the Constitution of India, and it came into effect on 26 January 1950".
In light of the celebrations around the country, S. S. Rana & Co., as a part its employee engagement programme, conducted a Quiz Competition for the members of the firm!!
Vikrant Rana, Managing Partner of S.S. Rana & Co., becomes a part of honoring young talent on the occasion of Children Day
Every Child has a right to be respected, the right to dream, the right to be loved and cared for the gifts that should be recognized and valued, the right to achieve their God-given potential and the need for unconditional love.[1]
On the occasion of Children's Day, S.S. Rana & Co. feels honored to wind the 'wings of young dreams' along with Jambay Gyaltsen Chetan. Vikrant Rana, Managing Partner of S.S. Rana & Co., attended an event before the Prize Distribution of E.F.S Annual Badminton Tournament, 2018 in Delhi.
The firm strongly supports the initiative of Jambay Gyaltsen Chetan. Mr. Chetan has been actively involved in bridging the gap between the privileged and underprivileged children since 2013. He has been providing free of cost sports training and education to underprivileged children. Some of these children are Delhi Badminton Champions. He imbibes core values in these children and teaches them to become a good human being before being a future doctor, engineer or teacher etc.
We can certainly say that people like Mr. Chetan are the change that every society needs. And we feel immensely proud that we are able to contribute to his fantastically selfless initiative.
S.S. Rana & Co. hosted a Yoga Session at Andaz Aerocity Delhi
S.S. Rana & Co. truly believes that 'a healthy mind lives in a healthy body and creating a balance between mind, body and soul is a must'. Continuing its Yoga tradition, the firm before the start of APAA Council Meeting in Delhi hosted a Yoga Session on November 16, 2018 at Andaz Delhi Aerocity.
We would like to thank all the attendees for making our session a part of their yogic journey of health, serenity and fitness. The intention of the session was to give everyone a break from their hectic schedules and have a conversation with their bodies. The beautiful venue of Andaz, right under the positive energy of the tropical sun surrounded by lush landscaped gardens coupled with the peaceful energies of our attendees inspired relaxation and the unraveling of worries, and offered a complete schedule that strengthened the body, mind and spirit.
On behalf of the entire team at S.S. Rana & Co., we would like to take this opportunity to sincerely thank all the attendees for their support and participation. We hope that everyone had a serene Yogic experience.
Mrs. Bindra Rana, Founding Partner, celebrates her Golden Anniversary of being enrolled at the Bar Council!
We are happy to share a proud moment of SSRANA & Co. as Mrs. Bindra Rana, Founding Partner, celebrates her Golden Anniversary of being enrolled at the Bar Council!
Congratulations on the 50 Glorious years of practicing as a Lawyer, which is an achievement in itself, magnified more because it is done by a woman.
You enrolled as a lawyer when the legal profession was not an obvious choice for women. You truly set aside the bias and stereotypes and also are an inspiration to many! We are blessed to have a guiding light like you.
Wishing you many more such glorious years!
Celebrating 29th Anniversary at Agra!
The big value of running a business is really two things: the knowledge and the commitment – Ben Horowitz
It was 29 years ago, that on September 1, 1989, the first step towards the journey of S.S. Rana & Co. was taken. The journey was full of ups and downs, success and failures, strengths and positivity. And today we stand together, proudly announcing that we, here at S. S. Rana & Co. have completed 29 years and are counting for many more to come.
Since the Firm's inception, every year this day is celebrated with joy. This year was no exception and it was even more special as we were just a step away from completing three decades. It's not every day that we turn 29 and it was such a symbolic time!!
Founder's Day 2018 included a highly adventurous trip to Agra. The first stop was Taj Mahal. The place was an intentional choice as it is a mark of continued dedication and effort that is put to turn dreams into reality. Just like the countless hours of toil and effort that is put at our Firm every single day to ensure that it grows with every passing moment.
A private guided tour of the Taj Mahal – the ultimate enduring monument to love, with a continually fulfilling beauty, was organized for the members of the Firm. The luminescent marble building was built ages ago by the fifth Great Mughal ruler Shah Jahan as a symbol of his love for his wife Mumtaz Mahal.
As they say, no celebration is completed without amazing delicacies. Therefore, keeping that in mind the next stop was a happy lunch at the Jaypee Palace Hotel. We were welcomed with irresistible aromas in each and every delicacy served. The lunch was an unforgettable gastronomic experience with an elegant dining and heartfelt company of team mates.
Finally, the celebrations ended with a must – the old school cake cutting ceremony. The day brought everyone together and depicted the values we hold ourselves to in the Firm.
SSRana & Co. celebrates National Sports Day!!
National Sports Day is observed every year across India on August 29 to mark the birth anniversary of the legendary hockey player Dhyan Chand who was born on August 29, 1905 and won gold medals in Olympics for India in the years 1928, 1932, and 1936.
With the country also competing at the 2018 Asian Games currently being held at Jakarta and Palembang, in Indonesia, and as an effort to encourage more employee participation in Sports, we at SSRana & Co, organized a Quiz Competition between the Departments.
The Quiz began with the introduction of the quizmaster and contestants from each department. The rules of the inter-department quiz competition were announced. The Quizmaster conducted the quiz in a very interactive way and the teams participated with great enthusiasm. They skillfully answered the questions asked. Though some of the questions were very tricky, the teams tried to answer them with confidence. The questions put forth to the teams were intriguing, exciting and made the audience go 'Aah!'. The audience also got a chance to participate whenever a question got unanswered.
Every round was a mixed bag with questions from a plethora of sports like cricket, football, ice hockey, lacrosse, badminton, squash, etc. The final round gave the teams a chance to catch up with the leaders and put-up a tough fight.
A range of emotions were felt in the competition – happiness, sadness, regret and excitement. The Trademark Department of the Firm won the Quiz Competition scoring the highest points followed closely by the Patent Department.
Mrs. Lucy Rana shines again this time at Women Entrepreneurship Summit, 2018'
'Believe in yourself. You are not second grade citizen. Women is Power'- Dr. T. Vasantha Lakshmi Ravi Kumar
S.S. Rana & Co. proudly announces that Mrs. Lucy Rana, Managing Associate Advocate with the firm has shined again. She was felicitated with Naari Udyamita Puraskar, 2018 presented by Smt. Krishna Raj, Union Minister of State of Agriculture & Farmers Welfare at the Women Entrepreneurship Summit, 2018 organized by Women Entrepreneur Association (WEA), India on August 25, 2018 at The Ashoka, New Delhi.
WEA, India is dedicated to empower women in real sense so that they can take their independent decisions. The Women Entrepreneur Award is aimed at women entrepreneurs who have moved the society with their innovation, ideas and inspiration. WEA- Awards celebrates the spirit of womanhood by women achievers across diverse fields and campaign to educate enable and empower women. The awards are given in three categories:
Naari Pratibha Puraskar: The Award celebrates the spirit of womanhood by women achievers across diverse fields and campaign to educate enable and empower women.
Naari Udyamita Puraskar: The Award recognizes women who have been successful in setting up their business and have taken it to great heights. It recognizes the women who have been able to build a strong ecosystem benefiting the stakeholders, from staff, to customers, to the community.
Naari Chetna Puraskar: The Award recognizes women who have contributed to the society- The Social Entrepreneurs. These 'unsung heroes' are selfless in their approach to work and life. They seek to generate 'social value' rather than just profits.
It was also excellent to know about the strong steps Indian Government is taking to ensure that people of the country not only hail 'Bharat Mata' but also realize the true meaning of it. The Government is working strongly to towards bringing women entrepreneurs into the mainstream of development. It has launched several schemes to assist women entrepreneurs. Stand up India, Mudra Yojana Scheme For Women, Stree Shakti Package by SBI, Bharatiya Mahila Bank Business Loan, Support to Training and Employment Programme for Women (STEP), Nari Shakti Puruskars
We congratulate Mrs. Lucy Rana for being honored for the endless hours she has spent ensuring that the firm rises with each passing day. Her dedication, enthusiasm and insight are an inspiration for many.
"SSRana & Co. organizes an awareness workshop on Respiratory illness & Tuberculosis"
Good health is the feeling of mental, physical and social well being of a person. It is of paramount importance which everyone should maintain to free of bodily disorders and feel good all time. However it depends on a host of several things. A person having a good health will have a good life. To become wealthy in life you need to earn a good health and not just money.
Communicable diseases continue to be a major problem in India, a large number of which can be prevented by health education, training and a baseline assessment is essential. A commonly held belief is that only economically weaker sections of the society are affected by TB. Hence, not many people opt for the crucial early check-up of the problem. The delay robs the patient of the chances offered by an early diagnosis of the disease. TB being a communicable disease, a delay in its diagnosis may also result in TB spreading to other people who come in contact with the patient.
Tuberculosis (TB) is an infectious disease caused by Mycobacterium tuberculosis (M. tuberculosis), commonly affecting the lungs. Tuberculosis remains a major public health problem in India. Over 2 million people die of tuberculosis worldwide each year and 0.4 million of them die in India alone.
The Current scenario indicates that there is an urgent need to view and deal with Tuberculosis. Which is why, we at SSRana & Co., organized a training session for our colleagues, in an effort to spread the message to everyone as well as spread awareness of TB and particularly motivate them in reducing stigma attached to TB. Creating awareness could play a vital role in control and prevention of TB.
"If you have health, you probably will be happy, and if you have health and happiness, you have all the wealth you need, even if it is not all you want."
Just another day at Office!! – SSRana takes the lead in initiating corporate wellness for colleagues
June 21, 2018 marks the fourth International Yoga Day, three years after Indian Prime Minister Shri Narendra Modi successfully convinced the UN to declare an International Day for Yoga. The declaration was made on December 10, 2014, and India celebrated the inaugural Yoga day with full fervor on June 21, 2015, as covered in Vol. VII, Issue No. 25 of our e-newsletter "IP ©onnect", dated June 22, 2015,
Yoga is an invaluable gift of India's ancient tradition. It embodies unity of mind and body; thought and action; restraint and fulfillment; harmony between man and nature; a holistic approach to health and well-being. It is not about exercise but to discover the sense of oneness with yourself, the world and the nature.
This year the theme for International Day of Yoga, is 'Yoga for Peace' which is organized by the permanent mission of India to the United Nations. The logo for International Day of Yoga is the folding of hands. It symbolizes 'Yoga' which reflects the union of individual consciousness with that of universal consciousness, a perfect harmony between mind and body, man and nature – a holistic approach to health and well-being.
Last year, bitten by the Yoga bug, we turned our office Conference room into a makeshift Yoga Studio. However, this year we wanted to celebrate the day with even more enthusiasm, and thus organized a mind and body workout session for our employees at Sri Aurobindo Ashram, New Delhi.
SSRANA & Co strongly believes that only a healthy body can house a healthy mind. Whether young or old, a healthy body, inner balance and joy of life is more important than ever in today's fast-paced, stressful society. Physical exercise and Yoga improve not only the overall posture, but at the same time have a calming effect & reduce, overall stress.
SSRana & Co. celebrates International Women's Day
"A hundred male and a hundred female qualities make a perfect human being". – Old Tibetan Proverb
International Women's Day, as the name implies, is dedicated to celebrating womanhood, their social, political, cultural, economic achievements and their significant contributions to society. The day also emphasizes the importance of gender equality. On this day, people from all across the world come together to partake in the celebration of womanhood.
Even the Indian Government has made sustained efforts over the past year towards empowering women with several schemes like Beti Bachao Beti Padhao Scheme, One Stop Centre Scheme, Women Helpline Scheme, Nari Shakti Puraskar, etc.
Themes play an important role in the celebration of the day. It widens the context of women and their rights across the world and highlights the atrocities women face and the need to end them. This year the theme for International Women's Day is 'Press for Progress'. With the World Economic Forum's 2017 Global Gender Gap Report findings telling us that gender parity is over 200 years away – there has never been a more important time to keep motivated and #PressforProgress.
We at S. S. Rana & Co. also celebrated this day with much enthusiasm. Interestingly, 9 out of a total of 13 Head of Departments (HODs) in the firm and more than 44% of the entire staff are women. Because we believe in women's equal access to and full participation in power structures and decision-making. Women have a right to equal participation and once in leadership roles, they can make a difference that benefits whole societies. And while we know that gender parity won't happen overnight, the good news is that across the world women are making positive gains day by day. Plus, there's indeed a very strong and growing global movement of advocacy, activism and support. So, we can't be complacent. Now, more than ever, there's a strong call-to-action to press forward and progress towards gender parity. A strong call to #PressforProgress. A strong call to motivate and unite friends, colleagues and whole communities to think, act and be gender inclusive.
To celebrate this day, an event was organized in the firm where all our women colleagues were appreciated for their valuable contribution to the workplace. This reinstates the firm's commitment towards providing equal opportunity and promote gender equality with women friendly initiatives and policies. A few of our women friendly initiatives to help women employees manage their careers and family responsibilities more successfully are –
Flexible work schedules – Depending on the requirement of the person, the facility of flexible work timings has been extended to several women for reasons including health issues, family commitments, etc.
Awareness and Training Programmes – We periodically conduct workshops/trainings for the awareness of all our women colleagues. Instances include a workshop on 'Financial Planning, Tax Saving and Financial Security' by a Financial Counselor of repute and a workshop on 'Female Healthcare' by a Doctor from the reputed Sita Ram Bharti Hospital.
Corporate Moms – We acknowledge and appreciate working mothers and have awarded them with the title of 'Corporate Moms' on the occasion of the Firm's 25th anniversary on September 1, 2014.
Prevention of Harassment and Anti-Discrimination Policy – The Firm also has an Anti-Sexual Harassment Committee in place, headed directly by Mrs. Bindra Rana, Founding Partner. Regular meetings are held by the committee wherein policies are discussed and implemented for providing a safe working environment to our women employees.