Legal Process Outsourcing Services

Services provided by LPO Firm

noreply@blogger.com (bizandlegis) — Wed, 26 Dec 2012 03:04:00 -0800

Legal process outsourcing companies can provide various kinds of services to its clients. Leaving the classic trends in outsourcing business which includes legal support services provided by many LPO firms mainly from India and Philippines, there are many many scope for legal connected chain management services. Even there are various threats and risks in legal industry mainly connected with policy matter and country wise regulations connected judicial systems, legal process outsourcing is growing up to the better hikes. The scope and influence of legal outsourcing spreads inspirational confidence to law students and young law graduates around the world.

Legal Services connected with Intellectual Property

There are many national and International law firms offering IP services like patent services, legal services connected with Trademark registration, Search, Filing, legal formalities related to copyright registration, brand management, various legal services connected with IP asset protection and Management services. Those Law firms can very easily utilize the resources available with LPO firms who have good number of attorneys who are well experienced in all IP support services.

Professional hiring and Legal Document Services

The law firms which are sinking in high huge amount of lapse every due to the payment of their in house attorneys and practice teams can adopt and easily depend the legal outsourcing companies in hiring attorneys who are well qualified. Those law firms can reduce their cost into 1/10.

Get works done and Save the time

The law firms and corporate business firms can claim double benefit by outsourcing their legal works to LPOs. First of all they can reducing the cost effect. Secondly they can reduce the huge time spend by in house attorneys. For example in a case like reviewing and analyzing a document with thousands and millions for pages will cost huge amount if they depends on in house or local attorneys. If they outsource the same work to a Legal process outsourcing firm, they can simply reduce the task time. Because it will take months and years to review a huge document with millions of pages with their company attorneys and their supporting team.

Legal Process Outsourcing News

noreply@blogger.com (bizandlegis) — Mon, 10 Dec 2012 21:54:00 -0800

Round table outcome between the lawyer and Thomson Reuters

The round table conference between two legal favorites was chaired by William Robins, a corporate partner and chief operating officer at Keystone Law, to discuss New regulations, technology, competitors and customer expectations, business process management (BPM), business process outsourcing (BPO) and the use of technology within law.

The main motto of the conference was highlighted by Williams, “To some, this is just management speak and a foreign language which has no place among the art of law, At the heart of our discussion is the role of technology and strategic thinking in law firms to re-engineer how things are done and, in particular, how we can make operations quick and track able, predictable and efficient.”

The discussion started with Gary Jackson, operations director, Irwin Mitchell explaining how in the mid 80’s the concept of six sigma took birth. That in 90’s only did BPM received its contraception through GE. He explained the main features of BPM and how Toyota gave the ‘lean’ processes and ‘lean’ management. Nowadays management is the main agenda of financial services and investment outlets.

Adam Shutkever, chief operating officer, Riverview Law gave his piece of mind of current developments in the legal sector, which are applicable in UK according to him. Alternative business structures (ABS) is not as efficient in law firms according to Adam cause the clients have no idea of the comparison between two firms in relation with this “add catalyst” for change. Samantha Steer, FloSuite legal product manager, Thomson Reuters was confident that Firms will be driven by customers, particularly when there are new entrants coming to the market. Firms are starting to take more notice of what customers actually want, and if you look at in-house counsel they’re increasingly asking for changes to be made. For firms that haven’t started BPM, Crawford Hawley-Groat, director of IT, Maclay Murray & Spens explained that such firms should ask elementary questions like would I pay for this?’ When you look at the bill that lands in front of you for work that is carried out, stand back and think: ‘Am I getting value for this? Would I pay my own money for the service that I’m receiving?’ Crawford was of the thought that BPM requires time and reasons, that it is not an instant processable change for any law firm

As for analyzing a process effectively in a law firm, Jackson gave a simple turnover plan, that In a typical law firm there are partners who are fee-earners, who dictate file notes. Historically those will be dictated via a secretary. The fee-earner will speak to the client, finish the call, then call upon the services of a secretary or a PA to take a note to reflect on what was said in that particular call. That then takes time and effort for two-people. If a partner can directly take notes, print then it is all done quickly with lots of energy and time saved. Shutkever said he was bewildered by the sophistication of work play in a law firm. Him being in a sector nowadays, he finds it ridiculous for the partner to have a call with the client and then go back in and call the secretary to dictate a note, presumably on paper, then maybe put it in the post afterwards. Abbey Ewan, director of business transformation, Simmons & Simmons said she had been too many conferences and all these years the issues which got mentioned were raised there too. But a little change had ever been made regarding them. Ewan discussed briefly about the pincer movement of ABS, legal process outsourcing (LPO), disruptive technology and the economic environment which was followed by debate like discussion.

Legal Process Outsourcing

The problems which the management was facing, is according to Hawley-Groat, everybody’s problem. Ewan agreed with Crawford but in his experience lawyers spent very little time looking at the world around them and paying much more attention to what their clients had to say to them. The roundtable went on for some more precious time; the conference was at its productive best with giving an excellent insight into what the future holds for today’s law firms.

On asking about returning to this discussion theme in 20 years’ time, Shutkever remarked that, “I think there will be few, if any, law firms structured as traditional partnerships and I don’t think anybody will get away with billing by the hour.”

Today’s successful law firms are already realizing the importance of striving to deliver a great customer experience, however it’s the firms that keep a close eye on streamlining their internal processes that will continue to flourish in the future.
Also Read: What is Legal Process Outsourcing
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Free Legal Answers Online

noreply@blogger.com (bizandlegis) — Sat, 21 Jul 2012 05:05:00 -0700

Legal Answers for Legal Questions

There are many advantages for using the online legal answers option of Biz and Legis website. You will get a quick response as early as possible. The legal answer drafted will be authentic as it will be prepared after a systematic legal research and analysis by highly experienced and qualified attorneys. You will not be beaten by the price or the charges for legal answers provided. Biz and Legis as an International law firm has separate wings of attorneys for each jurisdictions. Whatever the category of law for you wish to get a legal answer, will reach your email inbox as early as possible according to your level of customization done in the online legal answer request form. It may belongs to intellectual property or may be connected with litigation process, you will get an adequate legal answer drafted immediately from the online attorneys of Biz and Legis.

Blue Laws

noreply@blogger.com (bizandlegis) — Fri, 14 Oct 2011 05:32:00 -0700

Hey friends haven’t you ever heard about Blue laws? What the relation between Blue a colour with the law? Actually blue law is not a law that is related with colours but it is a kind of practice that restrict the trade of particular goods mainly in Sunday for the promotion of Christian Sabbath (Weekend Holidays).Before going to Blue Laws we must know what is Sabbath? The term Sabbath has originated from the Hebrew word “abat” means “to cease rest.”The Sabbath is the seventh day of week on which Jews and Christians believes that God rested after creating everything. The Christians and Jews consider this day as the day to meet for services to worship their God and often, rest themselves. And in order to protect and promote Sabbath, Blue Laws came. The concept of blue law is practiced mainly in United States and Canada and it aims to promote religious standards and moral values. Under Blue laws there occur restrictions on Sunday shopping on products like alcohols, beverage, and automobiles and occasionally on all commerce. During the early period Blue Laws outlawed Sunday work, travel, housework, cooking, clothing people could wear, and even sexual intercourse. It is believed that blue is the colour of paper upon which the code of laws was printed and hence these laws were come to be known as Blue laws. It was also believed that the term “Blue” in Blue law came from the proverb that “true blue will never stain” like that a man of fixed principles and resolutions, firmly grouped upon reasonableness and justice of such principles, will not be easily broke up from them or it cannot the interchanged by any evil interaction. So the term law was originated under a confident belief that these laws cannot be interchanged or distracted and is for promoting religious standards and beliefs. And blue is the symbol to summarize something of higher quality that cannot be destroyed easily and hence the name Blue law came. Majority of the people were still in the beliefs that the Blue Laws were first quoted in a Blue paper and hence the term Blue Law coined out.

Blue Laws often prohibit the trading activities during certain hours and there are exceptions to the prohibition of commerce on grocery and drugstores. The practice of providing rest on Sunday was come to establish was in Rome. Blue law was first enacted in 1600 on the colony of Virgina and its main aim was to require the attendance of people towards church on Sundays which they considered as their worshipping holiday. Farmers were excluded from this Blue law provision. The early provision of Blue law application includes restrictions on sale of Alcohol, sports, barbering and general labour. But later it had spread through all the sections of trade and commerce. Strict Punishments were provided for persons who were doing non-religious activity on Sunday under Sabbath rules which were a great example of how a state government can socially control citizens for promoting religious standards and beliefs. In the case of McGowan v Maryland (1961) several employers of a discount department store sold a few items like floor wax and loose-leaf notebook to the customers on Sunday. The government of Maryland observed that these persons had violated Maryland’s Blue law which only allows certain items such as drugs, tobacco, newspaper and some food stuffs to be sold on Sunday. The court in this case had held that Blue laws did not violate the free exercise clause because the employee alleges only economic injury and infringement on their own religious practice. The court had also observed that the blue law did not violate the division between church and state where the Maryland’s laws based on secular rather than religious state interests. The aim of blue laws are to improve the health, safety ,recreation and general well being of citizens and its present purpose of the laws is to provide a uniform day of rest for all. And in fact this day is of particular significance for various Christian sects do not bar the state from achieving its secular goals. Another case is R. v Big M Drug limited (1985) in this case Big M Drug mart ltd was charged with carrying on the sale of goods on Sunday violating the act of Lord and Big M was acquitted for trial and judge of the trial court founded that the lord’s act was a criminal statute violating the acts under section 2(a) of charter. And the court held that the provisions of Blue law was unconstitutional and also blue law is violated because Big M Drug mart ltd is a corporation rather than a natural person so it cannot have a religion and therefore religious freedom was not violated.

The Blue law is also practiced in Muslims countries since the term Blue law is not common there. In the city of Basra in Iraq the city council banned all alcoholic sells on Islamic holiday but the Christian merchants protested against this and it got the law over tuned and Christian Merchants raised their victory and they commented their victory as “Freedom has won this time in Iraq. Also in most of the Islamic countries no people are allowed to eat, drink or smoke in public during the holy fast month of Ramzan. Also during the period of fasting restaurants are ordered to be closed. So we can undoughtfully say that Blue laws were powerful battalions to promote religious faiths. Most of the countries were using Blue laws as equipment against Alcoholism under the religious customs and practice. But the practice of Blue Law is differing from state to state in United States. In every state of United States the sale of alcohol generally stops at a certain times in morning. In New York alcohol may not be sold between three and eight o'clock in stores on Sunday. In Ohio the selling of alcohol on Sunday requires a special license to sell, alcohol was outlawed in the state of Massachusetts till 2004.In this way different states in United States practicing different kinds of Blue laws that have changed at that time. Some states represent Blue Law as Sunday closing laws in order to exist them in general level. The practice of Blue Law started fading by 1985 and by 2004 only some of the states were practicing it by giving the importance as a religious custom. The main reason for the fading of Blue Law is that it is a religious custom not a Constitutional law. Because in highly populated states like New York the population contains all kinds of people like Hindus, Muslims, Buddhists, Christians, Atheists etc.

By the beginning of 21st century the practice of Blue Law and become less importance and most of the liquor stores started opening on Sundays. Even some of the states in US are still practicing it. In some liquor stores hours of sales are limited as compared to Saturdays and other weekdays. But even today some European countries were still following Blue Laws because religion is given more importance in European countries rather than America. The one reason for its diminishing was in the 21st century it was not become strictly religious in nature as compared to the 19th and 20th century and also these kinds of law didn’t have any constitutional support. In fact the Blue Laws had a played a major role in promoting religious faiths and beliefs and also act against alcoholism. Such kinds of law should be needed for Religious and Social welfare. The ultimate aim of Blue Law is a secular aim to close particular businesses on a given day in observance of a simple day of rest.

State responsibility for health

noreply@blogger.com (bizandlegis) — Mon, 3 Oct 2011 03:20:00 -0700

The history of medicine as a science reveals that is has grown with intuition, observation and interpretation in the form of predictions and diagnosis depending upon age old experiences. Its development has taken place in stages when it has drawn not merely from biological and natural sciences but also very richly from traditional cultures and social and behavioral sciences. Thus medicine, inter alia is a social system with definite social goals. Every culture has developed a system of medicine and the medicine is an important part of every culture. Hence there exists an organic relationship between medicine, human advancement and health. This relationship is well exemplified by the development of Unani Medicine, Acupuncturing system of treatment and other ways of treatment in various parts of the world in different periods of history, each characterized by its own specific culture. In view of this relationship of medicine with culture a correct assessment of the state of health of a place at a certain time cannot be had without a serious account of the prevailing law and policies of that place.

Women's rights in Christianity - Some reflections on divorce law

noreply@blogger.com (bizandlegis) — Tue, 27 Sep 2011 05:07:00 -0700

The classical art and literature describe femininity in most unpalatable language. Attempts, to reverse this trend very early turned into Woman's Liberation movement. As a result a feeling that the social and political conditions hitherto operating around women should change assumes a meaning. In order to usher in a area of social equality men and women nourish a feeling wide to redefine woman's rules at contemporary times. As a result two distinct trends may be ostensibly discerned. Firstly it is realized that gender equality might not be achieved unless the rights of women are delineated and guaranteed at various visible levels of social life. Secondly, the plethora of enactments that have remained in circulation irrespective of geographic, communal and ethical considerations, if are manifestations of status efforts to ameliorate general conditions of woman, should be implemented at the earliest. But the fact is that it is difficult to read masculine intentions behind these legislations, because most of the times they have proved to be opaqe, as a result, in pluralist societies the bounties of freedom remains denied to women.

At home, equality and non-discrimination on the basis of sex may sound foreign to the cross section of women because unlike Christina west, the Indian society is more male dominated. Indian males conveniently follow double standards regarding women. On the one hand they call her Durga and Kali and go to worship her and the other, she is raped in public like Drupadi, given up like Sita and appease other, burnt like Roop Kanwar amidst the beat of drums and rejoicing. Indian women continue to hold in one hand rattle to amuse her weeping child continue to hold in one hand rattle to amuse her weeping chid and a cup of tea to please her husband and yet in another hand a broom to clean up the house. Thus she does to prove herself to be facimile of the multi hand goddess. He hands multiply too as and when new roles are assigned to her. This condition by large remaining unchanged on account of Indian man's vision of femininity is geared around imprudence and inability of women to cater to needs of the times.

When might the dawn of freedom break upon Indian women albeit wife assumes great significance? They may legitimately doubt the gender intentions because by merely propagating equal rights and equity the miseries and sufferings of women have been candidly covered up by men, and this policy continues to flourish at ad infinitum. The fact is that men have historically been reluctant to rub their shoulders with women. They have been even denied the right to life and the State has failed to take note of their miserable plight in real life. Atrocities on women have become a regular feature of life, which attract press spotlights, yet fail to generate any public remorse. If their life is unsafe, so have been the Constitutional Promises - right to life and liberty, equality and non discrimination on the basis of sex, Woman, for example for no fault of here's is deprived of her property rights under various personal laws. She is burnt alive in case of her failure to bring dowry to her in laws. It is common for the courts to restitute her against will no matter the wife may have to remain away from matrimonial home for a reasonable cause. Within the precincts of home she receives beating in gift for wedlock. The sex based discriminatory provisions as such continue to remain on statute books irrespective of any communal considerations. The confusion is multiplied where courts come forward and weave elaborations favoring male interests than female needs, that too in the teeth of constitutional promises and guarantees like right to equality. In the face of such nontraditional any talk about equality, in particular, in the nook and corner of the bench and bar, is nothing less than exaggeration if not illusion. It is bound to breed perpetual discrimination, which may wreck a catastrophe because woman have already provided their strength to impose prohibition through Arrack movement- and forced the Andhra Pradesh to go dry. No nation shall progress if it suffers pain in the neck nor might it claim honor among galaxy of nations if half of its population is cowed down officially or unofficial by the rest half.

INDIAN EVIDENCE ACT

noreply@blogger.com (bizandlegis) — Thu, 26 May 2011 02:06:00 -0700

Indian evidence act contains a set of rules and allied issues governing admissibly of any evidence in the Indian courts of law originally passed by the British parliament. The Indian evidence act contains eleven chapters and 167 sections and came to force 1^st September 1872, during the time in which India was a part of British Empire. It was framed by sir James Fitz James Stephen .Now in this 21^st century law of evidence had become one of the most important laws administered by the Indian civil and criminal courts. It is playing an imperative role to determine the question of relevance or irrelevance of evidence that explicitly supports judgments.

The word, evidence is derived from the Latin word evidence or evidere, which means “ to show clearly; to make clear to the sight; to discover clearly; to make plainly certain; to ascertain; to prove”.

The main principle which underlie the law of evidence are-

(1) Evidence must be confined to the matter in issue;

(2) Hearsay evidence must not be admitted; and

(3) Best evidence must be given in all cases.

The evidence was classified into different types in the Indian evidence act……

(a) Best and oral evidence,

(b) Circumstantial evidence,

(c ) Direct evidence,

(d) Hearsay evidence,

(e) Corroborative evidence,

(f) Documentary evidence,

(g) Primary and secondary evidence,

(h) Real evidence

Oral evidence

Oral evidence perceived something by that sense by which it is capable of perception, should make the statement about it and no one else. It is explained under section 60 of the Indian evidence act. Oral evidence must, in all cases, whatever, be direct; that is to say; If it refers to a fact which could be seen, it must be the evidence of a witness who says he heard it; If it refers to a fact which could be heard, it must be the evidence of a witness who says he heard it; If it refers to a fact which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceived it by that sense or in that manner;

If it refers to an opinion or to the grounds in which that opinion is held, it must be the evidence of the person who holds that opinion on those grounds - Provided that the opinion of experts expressed in any treatise commonly offered for sale, and the grounds on which such opinions are held, may be proved by the production of such treatise if the author is dead or cannot be found or has become incapable of giving evidence or cannot be called as a witness without an amount of delay or expense which the Court regards as unreasonable.

Real evidence

It is also explained under section 60 of the Indian evidence act

“Provided also that, If oral evidence refers to the existence or condition of any material things other than a document, the court may, if it thinks fit, require the production of such material thing for its inspection.” For e.g. weapons, scar of wounds or other injury like loss of leg or hand.”

Circumstantial evidence:

Circumstantial evidence means the evidence of circumstances and is sometimes referred to presumptive evidence:

A is charged with the murder of B. At the trial a witness C , on behalf of the prosecution, gives evidence that he saw A running away from the murder place, with blood stained knife in his hand, evidence given by C will be called circumstantial evidence.

Hearsay evidence:

The reasons why hearsay evidence is not received as relevant evidence are: (a) the person giving such evidence does not feel any responsibility. If he is concerned he has line of escape by saying” I do not know, but so and so told me.” (b) Truth is diluted and diminished with each repetition: and , (c ) if permitted, gives ample scope for playing fraud by saying,” someone told me that..” It would be attaching importance to a false rumor flying from one foul lip to another.

Corroborative evidence:

Sec 156 and 157 says: When a witness whom it is intended to corroborate gives evidence of any relevant fact, he may be questioned as to any other circumstances which he observed at or place at which such relevant fact occurred, if the court is of opinion that such circumstances, if proved, would corroborate the testimony of the witness as to the relevant fact which he testifies. A sees B hit by a car and run over. The car does not stop but A notes the number He lodges a complaint to police. Police arrests driver and put him for trial rash and negligent driving A is the principle witness, when he gives oral evidence but at the end, the complaint given by him to the police, shown to him regarding accident and if he says yes, it is marked as exhibit, it is corroborative evidence.

Documentary evidence:

Documentary evidence is defined in the Act as: All documents produced for the inspection of the court. The purpose of producing document, is to rely upon the truth of the statement contained therein. This involves, When the document produced in the court, the examination of three questions: (i) is the document genuine, (ii) what are its contents, and (iii) are the statement in the document true?

Documents are divided into two categories, public and private.

Sec 74- The following document are public documents..

(1) Document forming the acts or records of the acts-

Of the sovereign authority
Of official bodies and tribunal, and
Of public officers, legislative, judicial and executive, of any part of India or of the commonwealth, or of a foreign country;

(2) Public record kept in any State of private document.

The kind of documents that are mentioned in sec 74(2) are documents made between private parties, but a record of them is kept in the registration office under the registration act, for example wills and sale deeds.

Sec. 75 says –” all other documents are private.”

Sec 76. Certified copies of Public Documents - Every public officer having the custody of a public document, which any person has a right to inspect, shall give that person on demand a copy of it on payment of the legal fees there for together with a certificate written at the foot of such copy that it is a true copy of such document or part thereof, as the case may be, and such certificate shall be dated and subscribed by such officers with his name and his official title, and shall be sealed whenever such officer is authorized by law to make use of a seal, and such copies so certified shall be called certified copies.

Explanation - Any officer who, by the ordinary course of official duty, is authorized to deliver such copies, shall be deemed to have the custody of such documents or parts of the public documents of which they purport to be copies.

Primary and secondary Evidence:

There is an original document; a photograph is taken and a manuscript is made from the photograph, and compare either with the original or photograph. The original is primary evidence. The photograph and copy is secondary evidence coming under Sec 63(2). That requires that the first copy should have been made by a mechanical process ensuring the accuracy of the copy.

Section 65 specifies in what cases secondary evidence will be received. Example- when a original is shown or appear to be in possession or power- of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the court, or of any person legally bound to produce it, and when, after the notice mentioned in sec 66, such person does not produce it. When the original document is lost or destroyed then secondary evidence of the contents of the document is admissible.

Admissibility of electronic records:

(sec 65 A and B) Any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (computer output) shall be deemed to be also a document. Provided the computer output was produced by the computer during the period over which the computer was used regular or process information.

Direct evidence:

Direct evidence is referred to sometimes as original. A is charged with the murder of B by stabbing him. C,D.E,F,G and H are witnesses. At the trial a witness C says he saw A stab B. D says he heard B cry out that A was stabbing him. E says that A saw running with blood stained knife. F says he saw A washing blood stained clothes. G, who is doctor says that the knife found in A’s possession might be caused the wound. H says he heard from C’s evidence is direct evidence

Coming to conclusion the Indian evidence act This Act is not applicable for domestic tribunals (such as Industrial Tribunal, Administrative Tribunal etc.) and non-judicial proceedings (such as Departmental inquiries, affidavits presented to a Court etc., proceedings under defense discipline acts)tribunals do not follow law of law of evidence because they believe in natural justice.

Indian Evidence Act applies to both Civil and Criminal proceedings. However, some sections are applicable only to Civil, some only to Criminal and some to both. The Act has put more burden of proof on the prosecution to provide the guilt of the accused. The degree of proof required is stricter in criminal proceeding than in a civil proceeding. In a criminal proceeding, the accused must be proved beyond all reasonable doubts.
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Summary on Passport Act, 1920

noreply@blogger.com (bizandlegis) — Wed, 25 May 2011 01:48:00 -0700

Passport (Entry into India) Act, 1920 (No. 34 of 1920)

The Passport (Entry into India) Act was enacted in 1920.The main aim of the act was to take power to require the passports of persons entering in India and is extended up to the whole India. The entry prescribed in this act means entry through all the means either sea water or air. [1]This act under the power of central government makes strict provision to prohibit the entry of person to India from foreign countries without a passport.

The passport act 1920 also grant punishments of offenses under any rule or order made by this act is again convicted of an offense under this act shall be punishable with double penalty provided for the later offense. The Passport(Entry into India)Act,1920 also granted the power to police officers not below the rank of sub-inspector, and any officer of the customs department to arrest any person without warrant who has contravened any rule or order made under section 3 of Passport(Entry into India)Act,1920.[2]

The Central Government may, by general or special order, direct the removal of any person from India, who in contravention of any rule made under Section 3 prohibiting entry into India without passport, has entered there in, and thereupon any officer of the Government shall have all reasonable powers necessary to enforce such direction.

Vishnu Devaraj. J
3rd Semester Student
National University of Advanced Legal Studies
Kaloor, Kochi - 682 017

[1] 2. Definitions. In this Act unless there is anything repugnant in the subject or context, -
"Entry" means entry by water, land or air
"Passport" means a passport for the time being in force issued or renewed by the prescribed authority and satisfying the conditions prescribed relating to the class of passports to which it belongs; and
"Prescribed" means prescribed by rules made under this Act.

[2] 4.Power of arrest: (1)Any officer of police, not below the rank of a sub-inspector and any officer of the Customs Department empowered by a general or special order of the "[Central Government][7] in this behalf may arrest without warrant any person who has contravened or against whom a reasonable suspicion exists that he has contravened any rule or order made under section 3.

(2)Every officer making an arrest under this section, shall, without unnecessary delay, take or send the person arrested before a Magistrate having jurisdiction in the case or to the officer in-charge of the nearest police station and the provisions of section 61 of the Code of Criminal Procedure, 1898 (5 of 1898) shall, so far as may be, apply in the case of any such arrest.

Armed Forces Special Powers Act

noreply@blogger.com (bizandlegis) — Sat, 21 May 2011 06:15:00 -0700

Armed Forces Special Powers Act was drafted in the year 1958 and as the title refers provides special powers to the armed forces of the Indian union in areas where the central government may notify as disturbed. Presently the act applies to the north-eastern states of Arunachal Pradesh, Assam, Manipur, Meghalaya, Mizoram, Nagaland and Tripura. At the wake of rising insurgencies in the state of Jammu and Kashmir during the 1980s the act was extended and applied in the state full fledged. The history of the original idea behind this act dates back to the colonial period when the British wanted an effective tool to control acts against the British Raj specially the quit India movement. The same model has been applied in this act to control insurgencies and therefore avoid secession of any state from these disturbed areas. Though the human rights violations are the only highlighted issues regarding the act, there has not been much mention on the flip side to the growing cry for the withdrawal of the act such as exposure of the army officials to any acts committed by them being termed as violation of human rights and a legal suit can be initiated and no army unit will work in a condition where there is no legal protection for its personnel and the worst case scenario being a state of anarchy prevailing in these states where the army refuses to fight. So a balance of convenience for both the people in these areas and also the army personnel should be maintained through a less repressive act. Getting into the details of the act, it provides for any army personnel posted in a disturbed area to:

“1."Fire upon or otherwise use force, even to the causing of death, against any person who is acting in contravention of any law" against "assembly of five or more persons" or possession of deadly weapons.

2. To arrest without a warrant and with the use of "necessary" force anyone who has committed certain offenses or is suspected of having done so

3. To enter and search any premise in order to make such arrests.

4. No legal consequences will be met by these officers who act under the law.

5. For an area to be declared disturbed there must be a deterioration of law and order situation in the area and the governor has the power to request the help of the central government to assist the state in maintaining it. Now the power to determine a disturbed area is also vested with the central government”

As a result of increasing pressure by the United Nations and protests carried out by local activists the Prime Minister has acknowledged that there are some ‘legitimate grievances’ against the act and assured that it will be surely dealt by the government. Upon this a five member committee headed by former justice Jeevan Reddy was constituted with a mandate of making recommendations to amend the provisions of the act to meet the government’s obligation of preserving human rights or repeal the act and bring in a new act with the above mentioned feature which it acknowledged the present act lacked. The committee did come up with the recommendation to repeal the act but without mentioning any substantial benefits for the people. The government till now have not acted on the recommendations and it was also made clear that it had no intention on replacing or diluting the act since an army unit cannot work under circumstances where its prone to legal action. It is also to be noted that the committee recognized that the act has been viewed as a symbol of repression by the union government. In numerous proceedings the courts have said that just because a statute has been abused by the officials under the act and it does not mean that the act should be repealed based only on that and the same applies to AFSPA. But the central government is slowly moving towards handing over the security issues of these states to locally raised forces. But it is uncertain how repressive will be their own security forces against them when it comes to eradicating cancerous insurgencies in the region.

Article by

Geejo Francis

3rd year student, LLB

School of Law,

Christ University,

Bengaluru

Plant Varieties Rights; A study in the light of TRIPS and UPOV

noreply@blogger.com (bizandlegis) — Tue, 10 May 2011 01:09:00 -0700

Plant Varieties Right is a special kind of Intellectual Property Right. It indicates the right of breeder of a new variety plant from third party infringement. It is synonyms to Plant Breeder’s Right. It includes protection for plant components (e.g. specific genes or chromosomes), plant products (e.g. fruit, oils, pharmaceuticals), reproductive materials (e.g. seeds or cuttings), etc. The right excludes third parties from reproducing, consuming, selling, exporting, etc of the protected variety.

International Laws on Plant Varieties Right

Conventions of UPOV and TRIPS are the important sources of laws which are dealing plant varieties rights. In which, WTO’s TRIPS (Trade Related Aspects of Intellectual Property Rights) Agreement is accepted world wide. Article 27 to 34 of TRIPS Agreement is dealing with protection of plants. Article 27.3 (b) prescribes the member states of WTO to make laws for protection of plant varieties. Laws can be made either through patents or through an effective sui generis[i] law or through combination of these two.[ii]

TRIPS Art 27.3(b) “……However, Members shall provide for the protection of plant varieties either by patents or by an effective sui generis system or by any combination thereof……”

The Article 27 is a controversial one because this same Article commanding on the member nations to keep away from patency rights on plant varieties. The provisions are as follows:

TRIPS Article 27.2 “Members may exclude from patentability inventions, the prevention within their territory of the commercial exploitation of which is necessary to protect ordre[iii] public or morality, including to protect human, animal or plant life or health or to avoid serious prejudice to the environment,…”

TRIPS Art 27.3 “Members may also exclude from patentability:

(a)……..

(b) plants and animals other than micro-organisms, and essentially biological processes for the production of plants or animals other than non-biological and microbiological processes…..”

Discussions and reviews are still going on TRIPS Article 27. The Famous Doha Round Talks commenced on November 1, 2001, includes the issue review of Article 27 of TRIPS Agreement. Recently UK Prime Minister David Cameroon recommended that “the Doha round talks should finish by the end of this year (2011)” .[iv]

World Governments depends on TRIPS and UPOV for making laws in respect of protection of plant varieties. Even though, UPOV (International Union for the Protection of New Varieties of Plants) was an early attempt[v], till now it has 69 member nations only[vi].

Plant Varieties Rights in different countries

1) United States

United States is a member of UPOV and is also bound by TRIPS Agreement. It does not follow a sui generis system. Plant Variety rights in United States are carried on by Plant Variety Protection Act, 1970.It grants Plant Variety Protection Certificates. Unlike other nations, they provide patency for any living organism that is the product of human intervention (such as by some breeding process or laboratory –based alteration).[vii] They give grace period for patency of living organisms and after the period the right over product shall give for public. In case of farmers, they give limited exemptions. Farmers can protect seeds for replanting but not allowed to sell to a third party.

2) Australia

According to Australia, they accepted both TRIPS and UPOV mechanisms for patenting of plants. Plant Breeder’s Right Act (1994) is the Act which deals with this. They give short period of protection. There is no need of patency right for the use of variety for non commercial purposes. Plant Breeder’s Right Act is administered by Plant Breeder’s Right Office under the IP Australia.[viii]

3) European Union

The European Union has laws for Plant Varieties Rights at both national and Union level. People can acquire rights from any nation in the Union. CPVR (Community protection of Plant Varieties) enables people to get rights. But it is not possible to acquire rights from both national level and under CPVR[ix]. If both rights are granted to same variety then CPVR suspend national right for the said duration.

4) India

Under Art 27.3of TRIPS, as it prescribes for patents or sui generis system or combination of these two, India followed sui generis system. Many developing nations follow sui generis system which helps to makes laws according to their concept. China and Thailand are follows UPOV. Sui generis protection is weaker than patent protection, in that right holders can only prevent third parties from commercially exploiting the protected material.[x] India’s plant varieties rights are governed by Indian Protection of Plant Varieties and Farmer’s Right Act, 2001. Section 14 and 15(1) of the Act classifies plants into four main classes. They are new varieties, extant varieties, essentially derived varieties and farmer’s varieties. Section 15 strictly prescribes certain conditions for registering a new variety. They are novelty, distinctiveness, uniform and stability.

Indian Protection of Plant Varieties and Farmer’s Right Act, Section 15(1) “A new variety shall be registered under this Act if it conforms to the criteria of novelty, distinctiveness, uniformity and stability.”

Conclusion

There are laws for protection of Plant Varieties Rights in every nations but it need to be more democratic. For that purpose, laws shall be changed to balance between International Obligations, traditional knowledges and farmer’s right. We shall expect the International talks on this subject shall conclude with good recommendations for it.

Prepared by Jino M Kurian, final year student B.A.,LL.B,Kerala Law Academy Law College,Thiruvanathapuram.

ENDNOTES
[i] TRIPS does not define Sui generis but UPOV defines it. Sui generis generally means that it enables member countries to make their own laws for protect plant varieties.

[ii] Jayashree Watal, Indian Council For Research On International Economic Relations, Intellectual Property Rights In Indian Agriculture.

[iii]The word ‘Ordre’(Danish) means order

[iv] http://redo.me.uk/news/www.bbc.co.uk/news/business-12309484

[v] In 1961 by the Paris Convention

[vi]Status as on April 4,2011

[vii]Diamond v Chakarbarty (1980) 447 US 303)

[viii]Can IP protects Plants, article published in Bios, Cambia.

[ix]Can IP protects Plants, article published in Bios, Cambia.

[x] Jayashree Watal, Intellectual Property Rights in Indian Agriculture, page no.6

Whether I P Laws can act as a savior from food scarcity

noreply@blogger.com (bizandlegis) — Sat, 7 May 2011 04:53:00 -0700

Intellectual Property Laws, can it act as a savior for billions of hungering people? This is one of the important issues to be discussed in the present world of law. Especially, in the context of the World Bank’s report that “global food production will have to double by 2050 to meet the rising demand”[i]. A highly efficient law can only save this world from such a big threat. IP Laws which is dealing with R&D, creation, trademarks, patents etc can be drawn in such a way to fulfill our intention.

Introduction of IP laws in agriculture is directly related to food production because third fourth of net food production is from agriculture sector.[ii] By the last 50 years many conventions and treaties are made by International Organizations relating to agriculture based IP Laws.[iii] Most of them liberalized global trade rules of agricultural products. Organization of farmers conducted struggles against it.[iv]They demanded for freedom in practice of agriculture. Those struggles were compelled legislatures to enact laws in favour of domestic food production.[v]

Merits of IP laws relating to food conservation

Commencement of new Intellectual Property laws encouraged private investors to begin research and studies in agricultural food production. Modern biotechnology is developing as a strong foundation for our food granary. Nanotechnology is one recent innovation of this. Some benefits are discussed below:

1) Specialized varieties of crop plants and seeds are developed.

2) New pest–control chemicals are invented for the agriculture sector.

3) Nutritional value of food products can be increased.[vi]

4) New mechanical equipments like crop planters and harvesters are invented.

Those innovations can greatly assist the farmers to achieve higher product yield and enhanced product quality[vii]. They are also examples of technologies those developments may require many years of research and testing. Patenting is helpful for investors to keep third parties away from their sector. This makes large profit for investors.

Challenges of the IP Laws relating to food conservation

1) Faults made by framers. Most of the agriculture related IP Laws are not capable to include all agriculture related areas. There exist legislative gaps. Trade secrets, human resource development,[viii] research etc shall include in Intellectual Property laws.

2) Private owners, who spend huge amount to develop specialized variety of seeds, plants, fertilizers, equipments etc, expect large economic profits from it. It adversely affects quality and quantity of yield.

3) Uncertainty of law can take the form of knowing the possible harms that may result from an activity i.e. the introduction of a new plant or animal into the environment. For example, when genetically modified canola was introduced onto the Canadian market, it was known that there was a strong likelihood that the canola would adventitiously grow outside the designated field. [ix]

4) Uncertainty of law may take the form of ambiguity, such that small groups of innovator’s may not aware about the value of their invention. They transact it at low rates of returns[x].

5) Harms hidden in new inventions may not foreseen even by a good scientist.

6) The lack of scientific expertise on the judicial bench.

These are because of the absence of an efficient law to protect research studies, human resource developments, patents, trade secrets etc in food production and related areas.

Suggestions to overcome the challenges

1) Bills shall be prepared after consulting an expert in contemporary agricultural science.

2) Public Institutions of the State shall conduct studies and share its benefits with the farmers e.g. Agriculture research Universities can conduct research studies. Their findings can be share with local farmers. New methods of cultivation, new varieties of seeds etc may be evolved.

3) Encourage partnership between Universities and private entrepreneurs in research.

4) Make more awareness of IP Laws among farmers.

5) Improve the working of PIPRA[xi] in each and every nation.

6) Include persons having scientific knowledge in judicial bench. It can be implement by giving preference to judicial officers having science background.

7) Make formalities and price of patency affordable to low class farmers. So that food production can be increased in more scientific way.

It can be conclude by remembering the words of Richard Jefferson[xii],he believes that “biotechnology can be used to benefit the poor and disenfranchised, but only if the R&D process is democratized so that everyone has access to critical scientific tools and technologies”[xiii]. We shall arise for a highly democratized Intellectual Property laws. Good governmental policies along with efficient laws, we could achieve our aim to increase food production and conserve the sources for tomorrow.

Prepared by Jino M Kurian, Student, fourth year B.A.,LL.B, Kerala Law Academy Law College, Thiruvanathapuram

ENDNOTES

[i] Michael R Taylor and Jerry Cayford RFF Report on American Patent Policy, Biotechnology and African Agriculture; The case for policy change, page no 9

[ii]Dr.Philippe Cullet, Food Security and Intellectual Property Rights in Developing Countries,IELRC Working Paper 2003 http://www.ielrc.org/content/w0303.pdf

[iii] WTO’s TRIPS, Doha Declaration, PGRFA treaty, treaties by FAO etc are few of them

[iv]Struggles against Basmati rice import in India, African Patent Issues, protest of ASEAN against Doha Declaration etc

[v]The Geographical Indication of Goods Act, 1999 of India, Plant Breeder's Rights Act 1994 of Australia, Federal law on Agriculture, 1998 of Sweden are examples

[vi]Dr.Philippe Cullet, Food Security and Intellectual Property Rights in Developing Countries, IELRC Working Paper

2003 http://www.ielrc.org/content/w0303.pdf

[vii]H. Maelor Davies, Ph.D. Director Kentucky Tobacco Research and Development Center University of Kentucky

article on Patents and Agricultural Biotechnology 2008 at page 1;

http://agribiotech.info/details/Daviespatentssent%20to%20web%2002.pdf

[viii]NAAS, Intellectual Property Laws in Agriculture, Paper policy, February 2003, page no 4

[ix]E. Richard Gold, Professor, McGill University Faculty of Law article on Intellectual Property Issues in

Agriculture and Agri foods published in Valgen Policy Backgrounder February 2011.

http://www.valgen.ca/wp-content /uploads/Gold-Richard-version-2-E-2011-01-27.pdf

[x] http://www.valgen.ca/wp-content/uploads/Gold-Richard-version-2-E-2011-01-27.pdf

[xi]http://www.pipra.org/

[xii]is the founder and CEO of Cambia, a Brisbane ,State of Queensland ,Australia

[xiii]interview with Richard Jefferson by Johanna Mair in Standard Social Innovation Review Spring 2011at pageno13

LEGAL SERVICES

INDIAN PHARMACEUTICAL INDUSTRY: AN OVERVIEW

noreply@blogger.com (bizandlegis) — Tue, 3 May 2011 04:46:00 -0700

Indian pharmaceutical industry is considered to be one of the largest and fast growing industries among the developing countries of this century. The industry is now much advanced from its initial stage and is currently the fourth largest producer of pharmaceuticals and thirteenth largest in terms of domestic consumption globally. This industry employs millions of people and ensures that essential medications are available at affordable prices to the plurality of the country's population. The industry has earned tremendous achievements in the complicated field of drug manufacturing and technology. Almost all types of drugs are manufactured now in India.

During 1947 Indian drug market was utilized by the multinational companies basically importing drugs manufactured in their country. This has been done mainly due to the Patent and Designs Act of 1911. The act provided product patent for all inventions in India, but the MNCs being the patentees were controlling the industry's market in India. Under these circumstances they began to import finished formulations of drugs into the local Indian markets.

After independence in 1948, India promulgated her first industrial policy resolution including pharmaceutical industry as an essential industry in the country thereby bringing it under the central regulations. It was during these years that the National Chemical Laboratory at Pune and the Central Drug Research Institute at Lucknow were formed. Moreover, the inadequacy of indigenous technology hindered the production of modern drugs locally. Therefore the government invited FDI to enhance production. This created a situation wherein several major foreign subsidiaries were instituted in India within a short time span. Nevertheless, these foreign entities did not bring major investments to the country to enhance productivity instead they started importing bulk drugs processing it to formulations.

1947 to 1957

During this period India was proceeding with the western type patent legislation and acknowledged product patents along with process patent on drugs. A major portion of the pharmaceutical patents in the country was vested with MNCs outside India. They were distinctly benefited by the patent law, technology, financial resources and their brand names which helped them to clearly establish their monopoly in Indian markets resulting in a situation where drug prices were so high in India when compared to the rest of the world. It was in 1954 that the government established Hindustan Antibiotic Ltd. which is the first public sector drug manufacturing company in India. Later, government established Indian Drugs and Pharmaceutical Limited. These ventures did help to increase drug production and improve manpower, but the size of the national sector continued to remain very small.

1970-1985

Due to some very important strategies initiated by the government the pharmaceutical industry had undergone drastic changes during this time. Furthermore, the introduction of Drug Price Control Order of 1970 was a major step to slow down the multinational control over the industry and helped to boost a self-reliant traditional market. In addition the Drug Policy of 1978 enhanced the availability of drugs at a relatively reasonable price.

Even though the bill was proposed in parliament in 1967 the Act was enforced only in 1972. The Act did not allow product patent for chemicals, food and medicine. It provided process patents for 5 to 7 years and had helped the country to be self-sufficient in the manufacturing of basic drugs. Under these circumstances researches were done resulting in the development of new processes for numerous drugs and many manufacturing companies were established in India during that period. Besides, the DPCO limited the cost on drugs and was able to ensure that the lifesaving drugs were readily available in Indian market at affordable prices.

During the 1980s due to the introduction of some important industrial and trade policies by the government, India had become a major pharmaceutical producer meeting the country's domestic needs. Thereafter the domestic sector in the country had taken control of a considerable portion of the local market. Moreover it had become necessary that the indigenous drugs and pharmaceutical industry required reorientations to be more equipped with the situations arising out of the benefits of growing economy. Under these circumstances the government revised the Drug Policy and DCPO in 1986 and 1987 respectively. Later some important policy initiatives were declared in the Drug Policy of 1984.

India signed the general agreement on tariffs and trade on 1994 and became a party to the agreement on TRIPs joining the WTO. India also was a signatory to the Uruguay Round of General Agreement of Tariff and Trade (GATT) during that period. This created a situation wherein India had to bring its patent laws in compliance with the TRIPs agreement. Later India had to make several amendments and was undergoing a transition period for several years for a complete compliance of TRIPs.

The IP legal regime over Indian pharmaceutical industry

In January 1 2005 India in compliance with the TRIPs agreement has made a major amendment in Indian patent laws allowing product patents. This has had an important impact on the industry mainly on the pharmaceutical products and chemicals. This gave rise to serious issues effecting people's life and right of patent holders. After the amendment the industry had to face major competitions from multinational companies who manufactured patented drugs. Conventional branded generics which dominated the market had to face huge competitions from the multinational companies who produced patented drugs.

A clause in the TRIPs agreement permits the governments to exercise control over patents and provide indispensable drugs to the poor in certain circumstances. The government had introduced adequate legal provision to make sure the availability of medicines at a reasonable price through compulsory licenses. India's provisions for the compulsory licensing of drugs have been considered relatively broad when compared to most of the world's patent systems.[1] While the government was making every effort to comply with the TRIPs the availability of lifesaving drugs at a reasonable price in the local domestic market was even high. Furthermore, the MNCs have started their campaign to protect their rights from the emerging situations.

The impact of TRIPS agreement in Indian pharma industry basically involves two questions.

(a) The effect of IPR legislation under this agreement on public health.

(b) Its effect on the industry and the economy of the country.

The first question may give rise to a situation wherein the patent drugs would increase the cost of medicines in local markets and would lead to the non-availability of essential drugs to the common public and could damage public health. A counter argument would suggest that this may lead to encouraging research and production of new drugs through international investment.

The industry being highly fragmented involving numerous small investors who were very much depended on making generic drugs were more concerned about having the required capital and technology to support an invention of a new patented drug by themselves. As a result they apprehended that the market will divide in favor of foreign multinationals or major companies within the country. But the larger companies in the country were in support of the patent hoping that it will bring more foreign investment and stimulate joint activities. This was supported by the fact that the larger companies started initiating several R&D proceedings and have already started to attain patents. Under the present scenario within TRIPS, whether it’s an MNC or an Indian company, success or benefit depends on their continuous efforts and initiatives put forth in the field of developing innovative products and introducing new technologies.

India's new patent rule allows for both post opposition and pre-opposition procedures. Pre-grant opposition may be based on virtually all patentability criteria that can be challenged, including the lack of novelty, inventive step, utility, non-eligible subject matter, the failure to disclose the source of biological material used for the invention, and inventions which are considered traditional knowledge.[2] However, most MNCs consider this as a lengthy procedure in patent prosecution process which leads to uncertain outcomes. On one side Indian generic pharmaceutical manufacturers regarded pre-grant opposition to the new Patent's Act helps to prevent unwanted litigation and was using the procedure more frequently.

During the March 2005 debates of the 2005 Patent Amendments in the Indian Parliament, the issues regarding patentability of micro-organisms and the definition of 'pharmaceutical substance' were raised.[3] The Commerce and Industry Minister referred these issues to a technical expert group (TEG) for detailed examination.[4] The TEG issued its report in December 2006 and concluded that: (1) it would not be TRIPS-compliant to limit granting of patents for pharmaceutical substances to new chemical entities (NCEs) only; and (2) excluding micro-organisms per se from patent protection would be in violation of the TRIPS Agreement.[5] With regards to NCEs, the report stressed that every effort must be made to provide drugs at affordable prices to the people of India and to prevent the grant of frivolous patents and 'ever-greening'.[6] The TEG defined 'ever-greening' as 'an extension of a patent monopoly, achieved by executing trivial and insignificant changes to an already existing patented product' [7] Ever-greening' was to be distinguished from 'incremental innovation', which was 'encouraged by the Indian patent regime', and defined as 'sequential developments that build on the original patented product'[8].

In response to the report, public health groups voiced unease that the recommendations would encourage frivolous patents and threaten access to medicines [9]. On the other hand, many of the MNCs found that the report vindicated many of their concerns. However, the report was later withdrawn amid accusations that it had been plagiarized [10].

NOVARTIS'S CHALLENGE TO SECTION 3(d)

In 2006 the Swiss pharmaceutical company Novartis AG filed a complaint in Madras High Court seeking an order against the rejection of its patent application under s3(d) for its anti-cancer drug Glivec. The petition also challenged the constitutionality of s3(d) in breach of India's TRIPS obligations. The Madras High Court dealt with the issue of constitutionality and the issue related to the question of patentability was referred to the Intellectual Property Appellate Board. The Madras High Court ruled against Novartis holding that: (1) s3(d) is not unconstitutional; and (2) it did not have jurisdiction over the TRIPS issue, and the WTO would have to decide whether s3(d) is TRIPS-compliant [11]. The decision has precipitated a favorable reaction from India's generic pharmaceutical manufacturers and the world's public health community who feel that if the judgment had gone the other way, there would have been a dearth of affordable drugs in other nations [12]. However, Novartis have now moved the Supreme Court for refusing patent protection for its new drug Glivec following the footsteps of Roche. [13]

A panoramic view of Indian generic pharmaceutical industry reviles the changes through which it has emerged in the past years after the 2005 Patent Amendments and the pharmaceutical patent protections. As a result of that many of the Indian pharmaceutical industries have reinforced the IP legal system and have been constantly increasing their R&D efforts investing in new innovations. While 10 years ago Indian companies invested only about 1% of their revenue on research and development, many of those companies are now contributing much more capital to this goal, typically spending 6-8% of their turnover on R&D [14].

MNCs initially had been reluctant to set up their company in India inter alia due to the lack of patent protection. The present scenario adapted by the government in granting strong patent protection maybe one of the factors that changed the prior reluctance. Furthermore, the presence of MNCs in India with their research and technologies is growing day by day.

Conclusion

The commencement of pharmaceutical product patent recognition in 2005 has brought tremendous changes in the pharmaceutical industry in India. From the early stages of the post-patent period the industry had a long way to run up to the present stage. Research and development starting from reverse engineering paved the way to the development of new novel drugs and discovery of new research and technologies which are highly essential to safeguard the general health of the public, especially in a developing country like India.

Presently the Indian companies are trying to put a hand on the high profile generic market of the developed countries taking advantage of the favorable position accorded by the intensity in which several drugs in the US drug markets going off patent. The market has become the most remunerative markets for the Indian companies at present. The industry’s US FDI compliant also creates a favorable circumstance in the arena of contract manufacturing and R&D among other things which will certainly lead to tremendous growth and new technology innovations within the industry.

Sources:

[1] Mueller, supra note 4, at 107.

[2] 5 India Patents Act 1970 (2005) ss25(1)(a-k).

[3] RA Mashelkar, Report of the Technical Expert Group on Patent Law Issues, s1.1, Dec 06.

[4] Ibid.

[5] Ibid at ss5.16; 5.28 (emphasis in original).

[6] Ibid at s5.16.

[7] Ibid at s5.10.

[8] Ibid.

[9] www.hindu.com/2007/02/22/stories/2007022206751200.htm

[10]http://timesofindia.indiatimes.com/NEWS/India/Mashelkar_takes_back_report_after_plagiarism_row/articleshow/1653926.cms

[11] www.ip-watch.org/weblog/index.php?p=582&res=1280&print=0

[12]www.nytimes.com/2007/08/07/business/worldbusiness/07drug.html?ex=1187064000&en=3ecaa558b34ed0fa&ei=5123&partner=BREITBART

[13] Novartis challenges Glivec patent decision in Indian Supreme Court

[14] Mueller, supra note 4,at 7 nn 11-12.

http://www.scribd.com/doc/14803040/Industry-Analytics-Indian-Pharmaceutical-Industry

http://74.125.153.132/search?q=cache:8Q6RAmFGnSEJ:www.ris.org.in/Dp80_pap.pdf+%221704+drugs%22&cd=9&hl=en&ct=clnk&gl=in&client=firefox-a

http://www.managingip.com/Article/2282181/Multinationals-and-generics-fight-for-pharmaceutical-market.html

http://nopr.niscair.res.in/bitstream/123456789/3661/1/JIPR%2010(4)%20269-280.pdf

http://books.google.co.in/books?id=CeHdvmpVwdgC&pg=PA98&lpg=PA98&dq=social+effects+of+IP+regime+in+pharmaceutical+industry+india&source=bl&ots=B5l-DuXPAE&sig=SVkPmf5tVaps4ZGsbCxy24hD3bA&hl=en&ei=tS7tSqikBoLVkAWS1vGZDw&sa=X&oi=book_result&ct=result&resnum=8&ved=0CB4Q6AEwBw#v=onepage&q=&f=false

http://www.finnegan.com/resources/articles/articlesdetail.aspx?news=24cedda7-28a3-4ac0-b100-ed9974123e67

LANHAM ACT: THE SCOPE OF TRADE DRESS PROTECTION

noreply@blogger.com (bizandlegis) — Thu, 14 Apr 2011 01:54:00 -0700

Lanham Act, a popular name for the Federal Trademark Act of 1946 is the Act which deals with the federal statutes of trademark law in the United States. The Act inter alia precludes various sphere of action in the area of trademark usage like trademark infringement, trademark dilution etc. Among these comes another concept called "trademark dress." This is a concept which originated from the way a product is packed or a product's total image or appearance. It is distinctive, non-functional, and distinguishes a trader's or manufacturer's products or services from those of others.

Typically, trademark consists of only a set of words or a logo. On the other hand, Trade Dress includes appearances like size, color or combinations of color, shape, a product's packaging or atmosphere inside a store, restaurant etc. Moreover, trade dress encompasses both packaging and design of products.

The Act which was enacted in 1946 precluded a product's “false description or representation” by a “person who shall with knowledge of the falsity” put the product on trade. This Act did not refer to trade dress protection as such. Later on the courts extended protection granted under Section 43(a) of the Lanham Act to trade dress also basically creating a federal law to enhance fair trade practices.

Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763 (1992) is a landmark case in the history of trademark dressing in US. In 1987, Taco Cabana sued Two Pesos in the United States District Court of the Southern District of Texas for trade dress infringement under § 43(a) of the Lanham Act, 15 U.S.C. § 1125(a) (1982 ed.) and for theft of trade secrets under Texas common law. The case was then put forward to a jury. The jury was asked to put forth its verdict by answering five questions promulgated by the trial judge. The answers to these questions were as follows:

1) Taco Cabana has a trade dress;

2) Taken as a whole, the trade dress is nonfunctional;

3) The trade dress is inherently distinctive;

4) The trade dress has not acquired a secondary meaning in the Texas market; and

5) The alleged infringement creates a likelihood of confusion on the part of ordinary customers as to the source or association of the restaurant's goods or services. [1]

In view of this verdict Taco Cabana's trade dress was safeguarded as it either was naturally unique or had derived a meaning which resulted in granting damages to Taco Cabana. Additionally, while calculating damages the court held that Two Pesos had intentionally and deliberately infringed Taco Cabana's trade dress.[2]

In Qualitex v Jacobson Products, 514 U.S. 159 (1995) court discussed trade dress protection in a different way. Qualitex's cleaning pads sold to dry cleaning establishments many years were green-gold in color. Jacobson Products started to sell pads of an identical color. The color was already registered by Qualitex as their trademark and they sued against Jacobson for infringement.

While considering the case the court took an opinion that color alone could be registered as a trademark. Furthermore, it was noted by the court that anything that could differentiate a provider can be registered which includes shape (of a bottle), sound (chimes or music), and odor (a particular fragrance). While presuming the above view the Court observed that color was nothing other than a distinguishing factor of a product and there was no reason to exclude color from that purview. To register color it must be distinctive and non-functional. As there is nothing essentially distinct about color, secondary meaning is a requisite to build up distinguishing element based on the aspect of color.

In order to make a color registrable it must be non-functional. If it has a function, inclusive of aesthetic function it will not be registrable. An example quoted by the Court was that of the competitors of John Deere farm equipment allowing painting their equipment green in spite of John Deere's trademark because farmers want their equipment to match. In addition the court enunciated a list with regard to the trademarks that stands above the trade dress protection. Those are:

     1. § 1124 (ability to block importation of confusingly similar goods).

     2. § 1072 (constructive notice of ownership).

     3.   § 1065 (incontestable status)

4. § 1057(b) (prima facie evidence of validity and ownership. [3]

The decision was reviewed by the Supreme Court of United States in Wal-Mart Stores v Samara Bros., Inc. (99-150) 529 U.S. 205 (2000). The Court decided on the circumstances under which a product’s design can be distinctive, and conditions under which it is entitled for protection where an action for infringement of unregistered trade dress under §43(a) of the Trademark Act of 1946 (Lanham Act) take place. Court held that product design, like color, is not inherently distinctive.

The Lanham Act provides for the registration of trademarks, which it defines in §45 to include:

“any word, name, symbol, or device, or any combination thereof [used or intended to be used] to identify and distinguish [a producer’s] goods … from those manufactured or sold by others and to indicate the source of the goods … .” 15 U.S.C. § 1127.

Registration of a mark under §2 of the Act, 15 U.S.C. § 1052 enables the owner to sue an infringer under §32, 15 U.S.C. § 1114; it also entitles the owner to a presumption that its mark is valid, see §7(b), 15 U.S.C. § 1057(b), and ordinarily renders the registered mark incontestable after five years of continuous use, see §15, 15 U.S.C. § 1065.

In addition to protecting registered marks, the Lanham Act, in §43(a), gives a producer a cause of action for the use by any person of “any word, term, name, symbol, or device, or any combination thereof . . . which … is likely to cause confusion . . . as to the origin, sponsorship, or approval of his or her goods . …” 15 U.S.C. § 1125(a). [4]

The Supreme Court held that "the breadth of the definition of marks registrable under §2, and of the confusion-producing elements recited as actionable by §43(a), has been held to embrace not just word marks, such as “Nike,” and symbol marks, such as Nike’s “swoosh” symbol, but also “trade dress”–a category that originally included only the packaging, or “dressing,” of a product, but in recent years has been expanded by many courts of appeals to encompass the design of a product. See, e.g., Ashley Furniture Industries, Inc. v. Sangiacomo N. A., Ltd., 187 F.3d 363 (CA4 1999) (bedroom furniture); Knitwaves, Inc. v. Lollytogs, Ltd., 71 F.3d 996 (CA2 1995) (sweaters); Stuart Hall Co., Inc. v. Ampad Corp., 51 F.3d 780 (CA8 1995)." [5]

Distinctiveness is the most important aspect of the trade dress protection. It can be either acquired or inherent. It is pertinent to have distinctiveness of trade dress in claiming a "secondary meaning” where it is can be associated with not more than one specific brand. A design to be inherently distinctive should be unusual in shape, color etc when introduced in the market that is essentially distinct from others. Whereas, acquired distinctiveness is something that is acquired by a design through marketing, advertising, promotions etc. It is a "look" that consumers associate with a particular product's brand identity. Demonstration of such association by a consumer survey or other means can provide the "look" a secondary meaning. [6]

It can be concluded from the above discussions that while implementing trademark and related rights such as trade dress one must constantly be aware of the necessity to trade successfully and to maintain proof of ones marketing. By doing so one may acquire secondary meaning, which is the key aspect of trade dress protection. The more distinctive is the selection of mark and packaging design is, the better will be ones chances to claim protection to trade dress.

Submitted by

Vinitha Prasannan

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PARODY: HOW FAR A PROTECTED SPEECH

noreply@blogger.com (bizandlegis) — Tue, 12 Apr 2011 03:29:00 -0700

“You can parody and make fun of almost anything, but that does not turn the universe into a caricature”[1]

Unlike other forms of freedom of speech guaranteed under the First Amendment, parody and satire plays a paramount role in dome of trademark and copyright. The dichotomy of the terms “parody” and “satire[2]” has been considered and defined by various jurists under enormous circumstances.

Parody and its meaning:

Black’s law dictionary defines the word “parody” as “A transformative use of a well-known work for the purposes of satirizing, ridiculing, critiquing, or commenting on the original work, as opposed to merely alluding to the original to draw attention to the later work.” The origin of parody lies in the definition of the Greek parodeia, quoted in Judge Nelson’s Court of Appeals dissent, as “a song sung alongside another.” [3] Dictionaries has been describing parody as a “literary or artistic work the imitates the characteristic style of an author or a work for comic effect or ridicule” or as a “composition in prose or verse in which the characteristics turns of thought and phrase in an author or class of authors are imitated in such a way as to make them appear ridiculous.”[4]

In spite of its criticizing or ridiculing characteristics, a parody is guaranteed constitutional protection of free speech under the First Amendment of the US constitution. In Constitutional Law, a parody is protected as free speech. When considering parody under copyright law, a particular work is required to come under the definition of a parody and at the same time shall be a fair use of the copyrighted material, if not, it may constitute an infringement. This article provides an insight on the aspects related to the use of parody as a defense under free speech and the consequential rulings by various courts in the subject matter.

Legitimacy of parody:

It is a fact that a parody can claim legitimacy to some extent regardless of its copying and commenting nature, but this does not give either the parodist or a jurist about an idea as to the invisible line to be drawn that makes it illegitimate. For example, book reviews necessitates quoting of a copyrighted material for the purpose of criticizing, whereas a parody may possibly be a fair use considering the context and elements that constitute it. While considering a case,[5] the court declined the petitioner’s contention that any parodic use is presumably fair and stated that this has no more justification in law or on fact than the equally hopeful claim that the use for news reporting should be presumed fair.[6]

The Act does not provide any proposal of favoritism over the victim for the parodists when it comes to evidence, and no practical presupposition for parody could be taken into account of the fact that a parody typically shadows into satire whilst the public is ridiculed by its inventive artifacts, or that such artifacts may have both parodic and nonparodic essentials. For that reason, like any other use, parody has to toil its line of attack through its pertinent features, and be adjudicated on a case by case basis, under the realm of trademark and copyright law.

Elements of parody:

In order to constitute parody there shall be certain distinguishing elements to the action of the parodists. The important features include an original work that is famous or familiar to a certain class of public. The parodists shall use only that much of the original work that is indispensable in the context in order to bring in the minds of the public the original work. Further, the parody shall subsequently become a fresh and original work.

When a work aims another work in a hilarious or satirical way, it constitutes a new creative work. This new creative work is capable to fight with other creative works in identical market even though they possess common characteristics. But the fact that a parody is an independent innovative work can be established only when it "make some critical comment or statement about the original work which reflects the original perspective of the parodist—thereby giving the parody social value beyond its entertainment function." Metro-Goldwyn-Mayer, Inc. v. Showcase Atlanta Cooperative Productions, Inc., 479 F. Supp. 351, 357 (ND Ga. 1979).

Trademark parodies

As the court observed in Anheuser-Busch, Inc. v. Balducci Publications 1993, p.794-5) "trademark parody is a subspecies of the genre that pokes fun at or criticizes a business entity by spoofing the entity's trademark. Trademark parody is only effective if the mark is well-known and the parody is enough like the original to invoke an association.... Thus, trademark parodies raise a legal tension not unlike that addressed by the fair use doctrine of copyright law; a tension between the legitimate property rights of the trademark owner and the rights of the parodist to free expression"

While putting forward the above mentioned view, the Court considered the case Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 591, 114 S.Ct. 1164, 1178 (1994) and concluded that the opinion of U.S. Supreme Court in the copyright case was an important guide for cases related to trademark parody. The court further stated that for a trademark parody to be successful, it must call up the original. "A parody must convey two simultaneous--and contradictory--messages: that it is the original, but also that it is not the original and is instead a parody" (Elvis Presley Enterprises v. Capece 1998, p. 199).

Furthermore, it is an established fact that "Trademark parodies, even when offensive, do convey a message. The message may be simply that business and product images need not always be taken too seriously; a trademark parody reminds us that we are free to laugh at the images and associations linked with the mark." L.L. Bean, Inc. v. Drake Publishers, Inc., 811 F.2d 26, 34 (1st Cir. 1987) (per Bownes, J.). For the purpose of good defense in a case alleging infringement, a trademark parody needs to be used properly.

In re Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 591, 114 S.Ct. 1164, 1178 (1994) (Souter, J.) court stated as follows: "We do not, of course, suggest that a parody may not harm the market at all, but when a parody, like a scathing theater review, kills demand for the original, it does not produce a harm cognizable under the Copyright Act. Because 'parody may quite legitimately aim at garroting the original, destroying it commercially as well as artistically,' the role of the courts is to distinguish between 'biting criticism that merely suppresses demand and copyright infringement, which usurps it.' "

Court had opined that trademark parodies convey a message even when they are offensive. It may remind us that trade and artifact metaphors are not required to be taken critically; for that matter a trademark parody remind us of the fact that “we are free to laugh at the images and associations linked with the mark." L.L. Bean, Inc. v. Drake Publishers, Inc., 811 F.2d 26, 34 (1st Cir. 1987) (per Bownes, J.).

Parody and commercial speech:

While considering issues related to commercial speech, the courts had developed a four-part analysis. To start with, one must resolve whether the parodist’s expression gain protection under the First Amendment. To constitute commercial speech in that provision, the expression must not be misleading and it must relate to a lawful activity. Then, one must consider whether the declared interest of the government is substantial. When both these above mentioned aspects give affirmative answers, one must decide whether the law directly advances the declared interest of the government, and whether it is not more far-reaching than is required to provide that interest. 447 U.S. 557 100 S.Ct. 2343 65 L.Ed.2d 341 Central Hudson Gas & Electric Corporation, Appellant, v. Public Service Commission of New York.

Infringement criteria:

Both federal and state laws clearly establish the fundamentals for a successful trademark infringement claim. To sum up, when contesting a trademark case, a plaintiff has the burden to prove that the defendant’s act of using its mark has brought up a likelihood of confusion with regard to the In a nutshell, a plaintiff in a trademark case has the burden of proving that the defendant's use of a mark has created a likelihood-of-confusion about the source of the defendant's goods or services.

To prove the above aspect, a plaintiff must initially establish that its trademark is protectable. Further, the plaintiff will have to show that the defendant’s use of the trademark is confusingly similar and creates likelihood of confusion, among public. In the case of parody, the parody and the original work have to have that distinction and the public has to distinguish between the original and the parodic element the parodist intend to convey. When there is confusion, it can make the public believe that the defendant’s artifacts are somehow associated, connected, approved or authorized with the plaintiff or it is the same as that of the plaintiff.

Likelihood of confusion:

The courts have put forward eight factors to determine the elements of likelihood of confusion. This aspect is applicable in the case of parody also. In order to analyze whether a certain incident constitute the indispensable elements of "likelihood of confusion," courts usually look into eight factors as described below:

1. The resemblance or similarity created by two marks when taken as a whole. (this aspects include the look of the marks, phonetic similarities, and fundamental meanings);

2. The goods and services involved and their similarities (this include a review of the advertising channels for the goods);

3. The potential strength of the plaintiff's mark;

4. Evidence of actual confusion by the consumers, if any;

5. The defendant’s intent in adopting its mark;

6. The goods and its physical proximity in the retail marketplace;

7. The likelihood of the consumer in exercising a degree of care; and

8. The possibility of growth of the product lines.

The courts usually examine the above mentioned first five aspects when considering a trademark infringement case. The last three factors are, for the most part, additional general factors that courts can be consider.

To conclude, there is "a need to evoke the original work being parodied.[7]" Nonetheless, a good parody clearly stay away from causing likelihood of confusion as its intent is to highlight the difference between the host work and it’s parody. If the parodist fails to establish a clear distinction as mentioned above, the parody is no more a parody and it miserably fails.

Bernard Berenson quotes (American art critic, 1865-1959)

Satire has been defined as a work “in which prevalent follies or vices are assailed with ridicule” 14, supra at 500 Oxford English Dictionary

972. F. 2d, at 1440, quoting 7 Encyclopedia Britannica 768 (15th ed. 1975).

11 Oxford English Dictionary 247 (2d ed. 1989)

Harper & Row, 471 U. S., at 561

Ibid

Campbell v. Acuff-Rose, Inc. 1994

ADVERTISEMENT LAWS OF INDIA- ITS TIME FOR A UNIFORM LEGISLATION

noreply@blogger.com (bizandlegis) — Tue, 5 Apr 2011 02:53:00 -0700

“Advertising is the foot on the accelerator, the hand on the throttle, the spur on the flank that keeps our economy surging forward”

Robert W. Sarnoff

We live in the era of globalization where new products are being marketed within a splash of time. So in this competitive environment, every representation of a product or service is unique and is all about what ‘others are not’. These practices indeed raise questions about truthfulness and fairness of representation of products and services. If a person is about to start a business, even it’s a product or service or magazine or newspaper, the first thing he look into it is how he can market it. The basic idea behind advertising is that it is just a presentation, which may be oral or written, to induce consumption to make people buy things which they actually do not want. When it comes to India, advertising has a profound impact on how people understand life, the world and themselves, especially with regard to their values, choices and behavior.

It is a naked truth that advertising is a business strategy which is in fact a powerful tool for enhancing, maintaining and developing brand equity. Therefore, it is crucial enough for companies to protect the content of an advertisement and to ensure that it is in line with the applicable laws. Even now many won’t realize the fact that which are the applicable laws governing advertising in India. At this point of time, it is pertinent to note that as far as India is concerned there is no as such law is there for regulating advertisement in any media. All one has to look into is a series of legislations and regulations relating to advertisements. But the fact is a common man should show pretty good amount of patience by going through all these rules and regulations as these will not as such constitute a complete structure on what one has to abide on the matter of advertisements.

ADVERTISING LAWS OF INDIA

As mentioned earlier the Government of India has not set up a regulatory body in India to regulate advertisements. But as in due course depending on the nature of the grievances, the power to regulate advertisements may be exercised by a vast variety of authorities, including the courts, Central and State Governments, tribunals or the police authorities. In addition to that numerous legislations also deal with advertisement provisions in part not in toto unfortunately. The rules, regulations and legislations include the following:-

1. Advertising Standards Council of India (ASCI)

2. Constitution of India

3. Consumer Protection Act, 1986

4. Information Technology Act, 2000

5. Indian Penal Code, 1860

6. The Young Persons (Harmful Publications) Act, 1956

7. Indecent Representation of Women (Prohibition) Act, 1986

8. The Cigarettes and other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003

9. The Cigarettes (Regulation of Production, Supply and Distribution) Act, 1975

10. The Drugs and Magic Remedies (Objectionable Advertisements) Act, 1955

11. The Drugs and Cosmetics Act, 1940

12. The Emblems and Names (Prevention of Improper Use) Act, 1950

13. Securities and Exchange Board of India (SEBI) (Stock-brokers and Sub-brokers) Rules, 1992 - Code of Conduct for Stock-brokers

14. Securities and Exchange Board of India (SEBI) (Prohibition of Fraudulent and Unfair Trade Practices relating to Securities Market) Regulations, 1995

15. Securities and Exchange Board of India (SEBI) (Mutual Funds Regulation), 1996: SEBI Guidelines for Advertisements by Mutual Funds

16. Securities and Exchange Board of India (SEBI) (Disclosure and Investor Protection Guidelines), 2000

17. The Prenatal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994

18. The Transplantation of Human Organs Act, 1994

19. The Representation of the People (Amendment) Act, 1996

20. The Lotteries (Regulation) Act, 1998

21. The Infant Milk Substitutes, Feeding Bottles and Infant Foods (Regulation of Production, Supply and Distribution) Act, 1992

22. The Competition Act, 2002

23. The Contract Act, 1872

24. The Civil Defense Act, 1968

To scrutinize certain principles and fairness in the sphere of advertising, Advertising Standards Council of India was established in India in 1985. ASCI deal with complaints received from consumers and industry against such advertisements which are false, misleading, indecent, illegal, leading to unsafe practices or unfair to competition and are in contravention to the advertising code[1]. Even though there is no as such provision for regulating advertisement policy in the Constitution of India, which should be adopted by press or media, the Supreme Court has given guidelines for the same through a series of decisions[2].

Consumer Protection Act, 1986 provides better protection of the interests of consumers and to make provision for the establishment of consumer councils and other authorities for the settlement of consumers' disputes and for matters connected to it, including protection against unfair trade practices.[3]

India is one of the very few countries in the world besides Singapore to have legislated Cyber laws.[4] The IT Act specifically empowers that anyone who publishes in the electronic form, any material which is lascivious or which tends to degrade persons who are likely to read, see or hear the matter contained or embodied in it, shall be punishable with imprisonment and fine[5]. Even there is a provision in the IT Act, which applies to any offence by which any person shall be punished irrespective of his/her nationality if the act constituting the offence involves a computer, computer system or computer network located in India[6].

As per the provisions of Indian Penal Code, 1860 certain advertisements are considered as criminal offences. It is dealt under different provisions of the Code[7]. The Young Persons (Harmful Publications) Act, 1956 prevents the dissemination of certain publications harmful to young persons. To be more précised harmful publication indicates such publications which would tend to corrupt a young person whether by inciting or encouraging him to commit offences. The Act also proclaims that whoever advertises or makes known by any means that any harmful publication can be procured from or through any person, then he shall be punished with imprisonment or with fine, or with both[8].

Indecent Representation of Women (Prohibition) Act, 1986 prohibits indecent representation of women through advertisements[9] or in publications, writings, paintings, figures or in any other manner and for matters connected therewith or incidental thereto. The Cigarettes and other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 and the Cigarettes (Regulation of Production, Supply and Distribution) Act, 1975, states that no person shall advertise for the distribution, sale or supply of cigarettes, and also shall not take part in the publication of such advertisement, unless the specified warning is included in such advertisement[10]. The Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954 (DMRA) controls the advertisement[11] of such drugs which is said to provide magical remedies and to deal with other matters relating to it.

As per the Drugs and Cosmetics Act, 1940 (DCA), no person shall himself or by any other person on his behalf offer for sale[12] any drug or cosmetic which is not of a standard quality, or is misbranded, adulterated or spurious. The Act gives similar restrictions to advertisements for traditional drugs such as Ayurvedic, Siddha and Unani. The Emblems and Names (Prevention of Improper Use) Act, 1950 is enacted to prevent the improper use of certain emblems[13] and names, for professional and commercial purposes[14].

In the exercise of the powers conferred by section 30 of the Securities and Exchange Board of India (SEBI) Act[15], 1992, the Board makes the regulations on the code of conduct for Stock-brokers to be known as SEBI Stock-brokers and Sub-brokers Rules in 1992. The provisions of the Rules specified that a stock-broker or sub-broker is prohibited from advertising his business publicly unless permitted by the stock exchange, including in their internet sites, by its subsidiaries, group companies etc. The Prenatal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994, contains provision[16] which prohibits advertisements relating to predetermination of sex. The Act provides for the prohibition of advertisements of any kind for any body or person pertaining to facilities for pre-natal diagnosis of sex available at any centre or place.

The Transplantation of Human Organs Act, 1994 provides for the regulation of removal, storage and transplantation of human organs for therapeutic purposes and for the prevention of commercial dealings in human organs and for matters relating to it[17] and provisions are there for the punishment for commercial dealings in human organs.[18] While detailing the provisions of the Representation of the People (Amendment) Act, 1951 (RPA)[19], it is observed that during the period of forty-eight hours before the conclusion of the poll for any elections in that polling area, a person shall not display to the public any election matter by means of cinematograph, television or other similar apparatus[20]. The statute even provides penalty for anyone including the advertisers who contravene the above provision with imprisonment or fine or with both.

Now when we analyze the Lotteries (Regulation) Act, 1998, it is seen that a State Government has the discretionary powers to organize, conduct or promote a lottery, including advertising thereof subject to some conditions[21] specified in the Statute. It is also provided that the State Government may prohibit within itself the sale of tickets of a lottery organized, conducted or promoted by every other state[22]; if any contravention on the above the Central Government may, by order published in the Official Gazette, prohibit a lottery organized, conducted or promoted thereof[23]. The penalty[24] clause of the Act is such that if any person acts as an agent or promoter or trader in any lottery organized, conducted or promoted in contravention of the provisions of the Act or sells, distributes or purchases the ticket of such lottery, he shall be punishable with imprisonment or with fine or with both.

In online advertising scenario, the law related to gambling is applicable to online gambling. The online lottery is the most popular form of internet gambling in India. Most companies who markets/distributes/conducts the state government-sponsored lotteries through the internet are restricted from selling their services in the states that banned lotteries. So it is advised that the companies (as a safeguard) seek an undertaking from their consumers relating to their residence under which the advertisers who publishes the same should also make a note of it.

The Infant Milk Substitutes, Feeding Bottles and Infant Foods (Regulation of Production, Supply and Distribution) Act, 1992[25] as Amended in 2003 regulates the production, supply and distribution of infant milk substitutes, feeding bottles and infant foods with a view for protecting and promoting breastfeeding and for the matters relating to it including advertisement[26] of the same[27]. The Competition Act, 2002 provides prohibition of certain agreements in respect of production, supply, distribution, storage, acquisition or control of goods or provision of services, which causes or is likely to cause an appreciable adverse effect on competition within India[28].

The provisions of Trademarks Act, 1999 clearly emphasize that the following are considered as trademark infringement if it is advertised in such a way as to[29]:-

a) takes unfair advantage of and is contrary to honest practices in industrial or commercial matters; or

b) is detrimental to its distinctive character; or

c) is against the reputation of the trade mark.

Thus if used properly and without any malafide intention, then comparative advertisement can prove beneficial otherwise that may mislead consumers resulting into irreparable loss as well as legal battles[30].

As per the Contract Act, 1872, the advertisements for gambling, lottery and prize games have held to be wagering contracts and thus void and unenforceable[31], are prohibited in India. While reading the provisions of the Act along with the ASCI guidelines it is understood that even the incorporation of a visual representation of such gaming room or table could be construed as indirect advertisement.[32]

The Civil Defence Act, 1968 gives power to the Central Government to make rules for securing civil defence[33] for prohibiting the printing and publication of any book or other document containing matters prejudicial to civil defence[34]. Rules could also be made for demanding security from any press used for the purpose of printing/publishing of any book or other document containing matters prejudicial to civil defence[35].

ITS TIME FOR A UNIFORM LEGISLATION!!!!

It is an undisputed fact that advertisement plays a vital role in building up any business. The aim of advertisement is to attract the sales and enhance the visibility of the products and services of the company among the consumers. Through an advertisement, a company can build an image which it wants to make in the minds of the people. Therefore, nowadays, companies spend a huge amount of their resources on advertising and promotional strategies. Now there is even a new medium for advertisers to explore, the Internet!!!

Thus it is evident from this blog that there are no specific legislations governing advertising in India, other than ASCI even which is not up to the mark to govern advertising spectrum. The changing context of liberalization and globalization required better regulation and strengthening of the institutional support. Even the IT Act is currently under severe scrutiny, as its scope leaves a lot to be desired. The fast growing internet transactions has unnerved evils, including those relating to online advertising. It is evident that all that is needed a codified uniform legislation for Advertising Laws and its time for India to lead the road ahead!!!!!!

[1]See http://www.ascionline.org/ for Advertising Code. The ASCI Code is a self-regulatory code which is not legally binding on parties. However, in practice ASCI members include various media, publishers etc. who normally abide by decisions of the Complaint Complaints Council set up by ASCI. The ASCI Code covers all media including the online media. Please also refer to the section on General Requirements. Disobedience of ASCI’s decision does not lead to any civil or criminal consequences. Its enforcement mechanism is through non-publication of the contravening advertising by its media members.

[2] Hamdard Dawakhana v. Union of India AIR 1960 SC 552; Tata Press Ltd. v. Mahanagar Telephone Nigam Ltd (1995) 5 SCC 139.

[3] As the Monopolistic and Restrictive Trade Practices Act, 1984 is repealed after the coming into force of Competition Act, 2002 the unfair trade practices provisions of the MRTP Act will be enforced under the Consumer Protection Act.

[4] Guide to Cyber Laws (Information Technology Act, 2000, E-commerce, Data Protection & the Internet, Rodney D. Ryder, 2^nd Edn. Reprint 2005, p.399.

[5] Section 67 of the IT Act, 2000

[6] Section 75 of the IT Act, 2000

[7] Section 292 (1) of Indian Penal Code, 1860; Section 292(2)(d) of Indian Penal Code, 1860; Section 292 (2)(e) of the Indian Penal Code, 1860; Indian Penal Code, 1860, Section 292- Exceptions, Section 292 A of Indian Penal Code, 1860; Section 292 A (e), (d) of Indian Penal Code, 1860; Section 293 of IPC, 1860; Section 294 A of IPC, 1860, Section 153 A of IPC, 1860, Section 153 B of IPC, 1860

[8] Section 3 of the Harmful Publications Act, 1956

[9] Section 2(a) of the Indecent Representation of Women (Prohibition) Act, 1986 defines advertisement- "Advertisement" includes any notice, circular, label, wrapper or other document and also includes any visible representation made by means of any light, sound, smoke or gas.

[10] Section 5 (1), the Cigarettes and other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 (CTPA)

[11] Section 2(a) of the Drugs and Magical Remedies (Objectionable Advertisements Act), 1954 defines " advertisement " includes any notice, circular, label, wrapper, or other document, and any announcement made orally or by any means of producing or transmitting light, sound or smoke;

[12] Section 18 of the Drugs and Cosmetics Act, 1940

[13] Section 2(a) of the Emblems and Names (Prevention of Improper Use) Act, 1950 defines emblem as any emblem, seal, flag, insignia, coat-of-arms or pictorial representation specified in the Schedule.

[14] Schedule of the Emblems and Names (Prevention of Improper Use) Act, 1950 enumerates the list of emblems and names which are prohibited from improper use in professional and commercial purposes.

[15] Visit http://www.sebi.gov.in/acts/act15ac.html

[16] Chapter VII Prenatal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994

[17] Preamble of The Transplantation of Human Organs Act, 1994

[18] Chapter VI, Section 19 of The Transplantation of Human Organs Act, 1994

[19] Section 126 of The Representation of the People (Amendment) Act, 1951 (RPA)

[20] Section 126 A is inserted in THE REPRESENTATION OF THE PEOPLE (SECOND AMENDMENT)

BILL, 2008 which provides a person shall not conduct any exit poll and publish or publicise by means of the print or electronic media or disseminate in any other manner, whatsoever, the result of any exit poll during such period, as may be notified by the Election Commission in this regard. For the purpose of this section, ‘‘electronic media’’ includes internet, radio and television including Internet Protocol Television, satellite, terrestrial or cable channels, mobile and such other media either owned by the Government or private person or by both;

[21] Section 4 of the Lotteries (Regulation) Act, 1998, the conditions includes the following:-

a) Prizes shall not be offered on any pre-announced number or on the basis of a single digit;

b) The State Government shall print the lottery tickets bearing the imprint and logo of the State in such manner that the authenticity of the lottery ticket is ensured;

c) The State Government shall sell the tickets either itself or through distributors or selling agents;

d) The proceeds of the sale of lottery tickets shall be credited into the public account of the State.

e) The State Government itself shall conduct the draws of all the lotteries;

f) The prize money unclaimed within such time as may be prescribed by the State Government or not otherwise distributed, shall become the property of that Government;

g) The place of draw shall be located within the State concerned;

h) No lottery shall have more than one draw in a week;

i) The draws of all kinds of lotteries shall be conducted between such periods of the day as may be prescribed by the State Government.

j) The number of bumper draws of a lottery shall not be more than six in a calendar year;

k) Such other conditions as may be prescribed by the Central Government.

[22] Section 5 of the Lotteries (Regulation) Act, 1998

[23] Section 6 of the Lotteries (Regulation) Act, 1998

[24] Section 7(3) of the Lotteries (Regulation) Act, 1998

[25] The Act is named as The Infant Milk Substitutes, Feeding Bottles and Infant Foods (Regulation of Production, Supply and Distribution) Act, 1992 as Amended in 2003 (IMS Act) visit http://www.bpni.org/docments/IMS-act.pdf

[26] Section 2(a) of The Infant Milk Substitutes, Feeding Bottles and Infant Foods (Regulation of Production, Supply and Distribution) Act, 1992 as Amended in 2003 (IMS Act): “advertisement” includes any notice, circular, label, wrapper or any other document or visible representation or announcement made by means of any light, sound, smoke or gas or by means of electronic transmission or by audio or visual transmission;

[27] Preamble of The Infant Milk Substitutes, Feeding Bottles and Infant Foods (Regulation of Production, Supply and Distribution) Act, 1992.

[28] Chapter II of the Competition Act, 2002

[29] Section 29(8) of Trademarks Act, 1999.

[30] Reckitt Benckiser v Hindustan Lever 2008 (38) PTC 139; Pepsi Co Inc v Hindustan Coca Cola Ltd 2003 (27) PTC 305 (Del)

[31] Section 24 to 30 of the Indian Contract Act, 1872.

[32] Chapter III, Clause 6(d) and (e) of the ASCI Code.

[33] Chapter II of the Civil Defence Act, 1968

[34] Chapter II, Section 3(1)(w) of the Civil Defence Act, 1968

[35] Ibid, n.122

TRADE MARK: CROSSBORDER REPUTATION - CONFLICTS

noreply@blogger.com (bizandlegis) — Sun, 3 Apr 2011 23:49:00 -0700

With the passage of time our entire world has become almost like a big city in view of the tremendous advancements made in the field of today's technology. Today's world is a world of computers and internet, which are the basis of our technological achievements. These achievements are reflected in the field of transport such as railways, ships, and airlines also.

In the current era, if a particular product is launched in a country its goodwill and reputation, which is the sole authority of the seller that he attained by selling his products in the market, is not limited to the four corners of that particular country. The status and benevolence of those goods are of inherent importance and shall reach to every nook and corner of the world through magazines, newspapers, television, telephone, cinemas and Internet. Thus it is a known phenomenon that when a commodity hits the market of a particular country anywhere in the world its trade mark surpasses the physical frontier of a geographical region and gains a trans-border or extraterritorial reputation even though it is not imported to that particular country. This happens because in today's world the information about the goods of an overseas trader and his product trade mark is available in any region where his goods are not being imported and therefore not being used.

This is where the importance of protecting trans-border or spillover of international trademark reputation of foreign companies arise. As the passing over of time and technology it has become imperative to recognize and protect such intellectual property rights among countries around the globe. Cross-border reputation, has its origin under the English law and is put forth in Section 35 of the Indian Trade Mark Act, 1999 by which the courts in India have recognized action by overseas plaintiff on the basis of passing off exclusively upon the reputation or status of his goods or services on the foreign land

Indian courts have protected such trans-border or spill over international trade mark reputation by way of various significant precedents. A Supreme Court judgment in 1996 clearly established that international companies that have an international trademark and enjoy a cross border reputation outside of India, can protect their IPR in India without the need of having an actual presence in India.[1]

In re N.R. Dongre v. Whirlpool Corporation, 1996 PTC (16) 583 (SC) the court considered the doctrine of "cross-border reputation" for the first time in detail. The plaintiff herein had registered their trademark Whirlpool in India in 1977. Nevertheless, the renewal of the mark had not been done after the expiry date. The said mark had a world-wide reputation and the defendant had been using this mark on their washing machines. The plaintiffs sold some of their machines to the US Embassy in India. They have made advertisements in quite a few internationally circulating magazines also which had circulation in India. As a result the plaintiff moved to file a suit against the defendant for passing-off. The Delhi High Court granted injunction which was latter reaffirmed by the Supreme Court. The court in its verdict held as follows:

"… a product and it’s trade name transcends the physical boundaries of a geographical region and acquires a transborder or overseas or extra-territorial reputation not only through import of goods but also by it’s advertisement. The knowledge and awareness of the goods of a foreign trader and it’s trade mark can be available at a place where goods are not being marketed and consequently not being used."

It was further held that "In today’s world it cannot be said a product and the trade mark under which it is sold abroad, does not have a reputation or goodwill in countries where it is not available. The knowledge and awareness of it and its critical evaluation and appraisal travels beyond the confines of the geographical area in which it is old."

"Dissemination of knowledge of a trademark in respect of a product through advertisement in media amounts to use if the trademark whether or not the advertisement is coupled with the actual existence of the product in the market."

The drift towards broader protection of cross-border trade reputation seems likely to continue. It has a broadly based consensus in common law jurisdiction. [2] The main circumstance for this sort of transnational concern is the common law proceedings in passing off. The decisions of Orkin in Ontario and Disney (mall proceedings) [3] in Alberta have established a previously apparent trend to construe the tort of passing off widely enough to afford transnational reputation or business goodwill. The perception and principle on which the passing-off action is based is that a man cannot sell his own goods under the guise that the goods are produced by another man.

It is necessary for a seller to safeguard his right of previous use of a trade mark as the benefit of the name and reputation received by him cannot be taken advantage of by another seller by imitating the mark and getting it registered before he could get the same registered in his favour. It is necessary for a business that is looking to prove sufficient reputation in a market in which it have not yet started to trade must have cogent direct evidence that its product is known to a considerable number of people in that market.

The Delhi High Court coined the concept of ‘first past the post’ which settled the law in relation to different approaches towards cross-border reputation. With the opportunities in the field of economy and broader terms of globalization the concept has gone through various swings. The principle of cross-border reputation hails well known trade marks, whose legal protection is clearly well-established in the jurisdiction of trademark. In acknowledgement to the most modern notion of trademark protection, the Trade Marks Act, 1999 guarantees protection to the well-known trademarks thereby abiding the requisite of Article 16 of TRIPs, which grants protection of trademarks.

Even though courts in India were very keen in protecting well-known trademarks, constitutional recognition is a stride to the right direction. A symbol is not possible to register if it is fallaciously similar to a well-known mark in India and by using it could take unwarranted benefit of, or be harmful to the unique character or reputation of the previous trademark. In addition, the most significant characteristics with respect to well-known trademarks are:

(i) Acquaintance or recognition of the trademark in the significant parts of public

(ii) Advertisement of trademark

(iii) Duration, geographical area and extent including registration and use

This standard follows even the trademarks of overseas companies, and so the characteristic of well-known trademark is not just limited to the field of Indian trademarks community, but the effects are reflected world-wide to the globalization and cross-border reputation of the mark. Even though courts have put forth numerous limitations or restrictions for deciding a case on the basis of cross-border reputation there are still several loopholes in the functioning of the concept. The question of cross-border or spill over international reputation has been considered in numerous cases by the courts leading to important judicial precedents.

No one can disagree with the fact that courts dealing with intellectual property in India have recognized the notion of cross-border reputation in the recent period. But the views expressed by different high courts are different at several point of time. The Bombay High Court in Kamal Trading Co., Bombay v. Gillette U.K.Limited Middle Sex, England, 1988 PTC 1, held:

“…It is necessary to note that the goodwill is not limited to a particular country because in the present days, the trade is spread all over the world and the goods are transported from one country to another very rapidly and on extensive scale. The goodwill acquired by the manufacturer is not necessarily limited to the country where the goods are freely available because the goods though not available are widely advertised in newspapers periodical, magazines and in other medias. The result is that though the goods are not available in the country, the goods and the mark under which they are sold acquires wide reputation. Take for example, the televisions, and Video Cassette recorders manufactured by National, Sony or other well Japanese concerns. These televisions and V.C.R’s are not imported in India and sold in open market because of trade restrictions, but is it possible even to suggest that the word "National" or "Sony" has not acquired reputation in this country? In our judgment, the good will or reputation of goods or marks does not depend on its availability in a particular country. It is possible that the manufacturer may suspend their business activities in a country for short duration but that fact would not destroy the reputation or goodwill acquired by the manufacturer.” [4]

In Apple Computer Inc. Vs. Apple Leasing & Industries,1993 IPLR 63 DEL, while adopting the same notion Delhi High Court held that it is not necessary in the context of the present day circumstances that the free exchange of information and advertising through newspapers, magazines, video television, movies, freedom of travel between various parts of the world, to insist that a particular plaintiff must carry on business in a jurisdiction before improper use of it’s name or mark can be restrained by the court.[5]

In Kabushiki Kaisha Toshiba vs. Toshiba Appliances Co.,1994 PTC 53, the Calcutta High Court relied significantly to ‘use of mark’ in relation to goods than cross-border reputation. The observation was that there are no goods at all in physical existence, there could be no use of the mark in relation to those. It is the same, if the goods are in the physical existence somewhere else than in Indian market. For, however big the foreign market of a trader might be, and however famous his trade mark might be all over the world, yet to qualify for use of the mark in relation to the goods within Trade & Merchandise Marks Act of 1958, such use must be made in India and not abroad. [6]

Furthermore, the court held that a mere use of the mark in advertising on other publication media is insufficient as ‘use’ because if it were not so, trafficking in trade marks could be legally indulged in, for a mark could be registered and then kept alive merely by advertisement without ever putting any goods into the market.[7]

Although, the Division Bench of the same court in M/s J.N. Nicholas (Vimto) Limited v. Rose and Thistle,1994 PTC 83, declared that the use of a trade mark does not necessarily imply actual sale of the goods bearing such mark. Use can be in any form. Mere advertisement without having even the physical existence of the goods in the market can be said to be a use of the mark.[8]

In re of Aktiebolaget Volvo v. Volvo Steels Limited , 1998 PTC 18 the Division bench of Bombay High Court again reiterated the principles established with regard to the doctrine of cross-border reputation where the court considered subsequent events like the intention of the party to go into the Indian market as touching the balance of convenience which is a factor that governs the prudence of the courts in granting injunctions in the case involving the subject matter. Nonetheless, with respect to cross-border reputation the division bench relied on the Whirlpool case and held that cross-border reputation is recognized in India and to constitute the same actual sale is not necessary for the plaintiff to ascertain its reputation and goodwill in India.

When considering the case of Milmet Oftho Industries & Ors. Vs. Allergen Inc., (2004) 12 SCC 624, the Supreme Court finally established the law related to cross-border reputation. The appellant was an Indian pharmaceutical company who manufactured "Ocuflox". The same product was manufactured by an overseas company, who was the respondent in the case. Both products were a medical preparation for the eyes. The claim of the respondent was that they have been using the mark from September 1992 and thereafter they marketed the product in different countries around the world and have not yet entered the Indian market. The appellant obtained registration from the Food and Drug Control Administration in August 1993, i.e., almost a year after the respondent. In view of that the respondent filed a suit for injunction against the appellant for passing off and the court held in favor of the respondent stating as follows: " the mere fact that the respondents have not been using the mark in India would be irrelevant if they were first in the world market”

Another case in which the Supreme Court gave a verdict affirming the doctrine was the Blenders Pride Case. In this particular case the plaintiffs were the manufacturers of Blenders Pride Whisky which having world famous reputation around the world from the year 1973 onwards. The product was available in almost all countries of the world and it was known in India. The plaintiff had a desire to exploit the Indian market as well. They applied for approval for the manufacture of whisky by the name Blenders Pride and upon getting the approval they started manufacturing it by the name Blenders Pride in India since 1995. Nevertheless, they had manufactured it for a couple of months in the year 1993 to 1994 and stopped the same sometime in 2005. The production was stopped almost for 11 months. The Court held the following:

“the Plaintiffs having come out with ‘Blenders Pride’ whisky first in the international market were first past the post; even though the Defendants were the first to do so in India. The fact that the product of the plaintiffs was not manufactured or sold in India from 1973(when it first entered the market) till 1995 when it became freely available in India, is of no consequence.”[9]

Today international trade is rapidly growing in a pace with the developing technology and innovations in every field. These changes make it imperative that intellectual property rights need to be appropriately recognized and protected as a global community. Indian judiciary in its various decisions have increasingly recognized cross-border reputation of trademarks thereby repeatedly safeguarding spillover reputation even if the mark is not actually used in India. Most of the decisions reflect the concern in relation to the misappropriation of foreign marks. However, it is pertinent for overseas traders who hold such marks to act proactively for implementing their goodwill internationally established through their products by registration of those trademarks and instituting timely action and suitable proceedings for enforcing the same.

Submitted by

Vinitha Prasannan

Sources:

[1] http://www.mondaq.com/article.asp?articleid=87398

[2] http://books.google.co.in/books?id=951eZzbuxjEC&pg=PA106&lpg=PA106&dq=trademark+spillover+reputation&source=bl&ots=sti2WMZvxA&sig=wsHw9m-1IsSYgIlwTBTHoR1FUd8&hl=en&ei=1tn-SoffKMm9kAWSr5zzCw&sa=X&oi=book_result&ct=result&resnum=4&ved=0CBIQ6AEwAw#v=onepage&q=trademark%20spillover%20reputation&f=false

[3] Orkin Exterminating Co.Inc. V. Pestco of Canada and Walt Disney Productions v. Triple Five Corp., 1985 supra note 14.

[4] http://unitedipr.com/subpage.php?id=19&subid=37

[5] Ibid

[6] Ibid

[7] Ibid

[8] Ibid

[9]http://74.125.153.132/search?q=cache:5ltT0WR701MJ:www.patentoffice.nic.in/whats_new/Trademark_Potential_IP_Tools.pdf+blender%27s+pride+case&cd=8&hl=en&ct=clnk&gl=in&client=firefox-a

http://ns2.ipo.gov.uk/o05809.pdf

IMMOVABLE PROPERTY AND INVESTMENT RIGHTS BY NON-RESIDENTS IN INDIA

noreply@blogger.com (bizandlegis) — Fri, 1 Apr 2011 04:12:00 -0700

Foreign Exchange Management Act or FEMA

The act which deals with acquisition and transfer of immovable properties in India, FEMA, has been introduced by RBI in the year 1999 to substitute the earlier Foreign Exchange Regulation Act or FERA which was enforced in the year 1973. FEMA came into being in the year 2000. The key idea behind the enactment of the Act was to encourage the country's foreign payment and trade and also to bring together all the regulations and laws related to foreign exchange. Government has taken tremendous measures for effective implementation of the Act in India.

The applicability of the Act is not only limited to all parts of India but also includes all agencies, branches and offices outside India which is owned or controlled by any person who is an Indian resident. In India the acquisition and transfer of immovable property by an NRI or non-resident Indian, PIO or Person of Indian origin Resident outside India comes under FEMA. The act authorizes an NRI or PIO for the following activities:

To hold and transfer an immovable property other than an agricultural property situated in India. Agricultural property includes any plantation or farmhouse.

To acquire and transfer immovable property in India other than Agricultural or plantation property.

It allows a person resident outside India with an RBI permission to establish a branch, office or other place of business in India (excluding a liaison Office) to acquire an immovable property in India which is necessary for or incidental to carrying on the permitted activity.

The act administer the repatriation of the sale proceeds by an NRI or a PIO, of an immovable Property (other than agricultural land or plantation property or a farm house) in India subject to the fulfillment of certain specific conditions.

It precludes some activities such as the acquisition or transfer of immovable property in India by citizens of certain neighboring countries, whether such individual is a resident of India or not.

It precludes the transfer of an immovable property in India by a person resident outside India without prior permission of RBI. (other than an NRI or a PIO i.e., a foreigner.)[1]

In this context it is pertinent to explain the prerequisites of an NRI or a Non-resident Indian. An individual who fall in the category of a "resident" should posses any of the following prerequisites:

Such persons should have been in India for a period of at least 182 days in the preceding year. Their presence shall not be for a continuous 182 days.
Such persons should have been present in India in the previous 4 years and should have stayed here for not less than 60 days during the last year in consideration.

All other persons who do not posses any of these prerequisites are called 'Non Residents'.

A Person of Indian Origin is another important category of people with regard to transfer of immovable property under this Act. Those persons shall fulfill any of the following conditions described below:

The person who is not a citizen of Pakistan or Bangladesh or Sri Lanka or Afghanistan or China or Iran or Nepal or Bhutan.
The person has held an Indian passport or;
A person whose either parents or any of his grand-parents was a citizen of India under the Constitution of India or the Citizenship Act, 1955 (57 of 1955); or
The person who is a spouse of an Indian citizen or a person referred to in sub-clause (a) or (b).

Reserve Bank of India vide Notification No.FERA.152/93-RB dated 26th May 1993 grants general permission for acquisition and transfer of properties for foreign citizens of Indian origin.

RBI grants general permission for acquisition of property for carrying on permitted activities

Companies other than banking companies that are not incorporated under any of the law in force in India is granted general permission by RBI to acquire and hold any immovable property that is essential for any activity permitted by Reserve Bank under section 28 or section 29 of FERA 1973.

RBI has granted general permission to acquire or hold any immovable property by those companies, other than banking companies that are not incorporated under any of the law in India which is essential for any activity permitted by Reserve Bank under Section 28 or Section 29 of FERA 1973. Those companies are required to submit to Reserve Bank a declaration in form IPI 5 not later than 90 days from the date of acquisition of the immovable property. Foreign companies permitted under section 29 of the Act to open liaison offices or to post representatives in India are exempted from the above general permission.

General Permission for Acquisition/Disposal of Residential/Commercial Properties by Foreign Citizens of Indian origin

Foreign citizens of Indian origin, whether residing in India or not, are granted general permission to purchase and dispose immovable properties situated in India other than agricultural land, farm house or plantation property respect to the following conditions:

Acquisition or Disposal of Residential Properties in India other than Gift

Property acquired by purchase or inheritance for an individual's bona fide residential use that is transferred by way of sale. There is no restriction on the number of residential properties acquired or disposed of under the general permission. Exception to this is mentioned below.

Sale consideration for the purchase of property shall be from a foreign exchange remitted from outside India through ordinary banking channels or funds that are drawn from the purchaser's NRE (non resident external) FCNR (Foreign Currency Non Resident) account with a bank in India.

The acquired property is not let out except under a circumstance where there is an immediate requirement for the buyer's own residential use.

By submitting a declaration to the Central office of Reserve Bank on the acquisition within a period of 90 days from such acquisition in form IPI 7 along with a certified copy of the document as an evidence of transaction and bank certificate evidencing the consideration.

If the property is held by a non-resident foreign citizen of Indian origin then the income acquired by way of sale proceeds or rent of the property or income accrued out of investment of such proceeds is credited to his NRO account or to the Resident Rupee Account with a bank in India.

The Reserve Bank would consider applications for the repatriation of sale proceeds up to the consideration amount remitted in foreign exchange for the purchase of the property with respect to residential properties acquired on or after 26th May 1993, i.e., only up to two such properties provided the sale takes place after three years from the final purchase date of the deed or from the date of payment of final installment of consideration amount, whichever is later. Such applications should be made to Reserve Bank within 90 days of the sale of the property in form IPI 8.

Acquisition or Disposal of Residential property by Gift

1. Properties can be acquired, transferred or disposed of by way of gift from or to a relative who may be an Indian citizen or a person of Indian origin whether resident in India or not. i.e., up to two houses.

2. No gift tax is payable by a person in India with the abolition of gift tax.

Acquisition or Disposal by way of inheritance or sale of commercial property in India

Properties, other than agricultural land/ farm house/plantation land, in India can be acquired by way of inheritance or purchase. Properties are transferred and disposed of by way of sale. There is no restriction placed on the number of properties acquired or disposed of under general permission subject to some specific exceptions.

Sale considerations can be done through foreign exchange remitted from outside India through usual banking channels or money withdrawn from the purchaser's NRE/FCNR account maintained with a bank in India.

It is required to submit a declaration to Reserve Bank within 90 days in form IPI 7 about the acquisition of the commercial property or final final payment of sale consideration together with a certified copy of documents evidencing transaction and consideration paid.

With respect to commercial properties purchased on or after 26th May 1993, the Reserve Bank would consider applications for repatriation of original investment up to the consideration remitted in foreign exchange for the properties acquisition provided the sale of the property is after a period of three years from the date of final purchase deed or from the date of remittance of final installment of consideration amount, whichever is later. The balance sale proceeds of the properties should be credited to the seller's NRO account or Resident Rupee Account with regard to foreign citizens maintained with a bank in India. Those applications for repatriation should be made within 90 days of the sale of the properties to the Reserve Bank in form IPI 8.

General permission for letting out of Residential property in India by Non-resident Indians and persons of Indian origin

Permission is granted by the Reserve Bank to let out any immovable property in India held by a non-resident Indian or a person of Indian origin with an exception that the rental income or any investment of such income shall not be repatriable outside India at any time and such income should be credited to the owner's ordinary Non-Resident Rupee account within a bank in India.

Submitted by:

Vinitha Prasannan

Sources:

http://www.delhilaw.firm.in/articlenews/nriinvestment_property.htm

http://www.rbi.org.in/SCRIPTS/ECMUserChapterDetail.aspx?Id=354&CatID=13

Pre-incorporation contracts: legal enforceability

noreply@blogger.com (bizandlegis) — Wed, 30 Mar 2011 04:52:00 -0700

The formation of a legal entity or a company is in simple words a matter of legal formality. A contract is that legal obligation by which a legal entity ascertains its legal status. Contracts can be considered as the basis of these formalities. As the formation of these contracts involve various discussions at different stages by more than one person pre-incorporation contracts become inevitable. A company normally will not be able to enter into a contract without coming into existence.

Usually a pre-incorporation contract comes into existence prior to the formation of a company. Such contracts will be entered into by the promoters of a company on behalf of the company before the company comes into existence. These promoters are the people who are involved in the formation of a company. They deal with the required formalities of a company's registration from finding directors and share holders to doing negotiations for business contracts for the new company.

But is it possible for a company which is not in existence to enter into an enforceable contract on behalf of the company? According to common law, a company before existence cannot attain a legal status to attain contractual rights or sustain contractual liabilities existing from a pre-incorporation agreement and so the pre-incorporation agreements cannot oblige a company.

In each case promotion of a company varies according to the factual circumstances. Those aspects range from the day when the promoters begin to make contacts on behalf of the company to the starting of the company continuing to the day when the directors of the company take their place. The status of the promoters cease to exist immediately after the formation of the board of directors and from then onwards they start controlling the company. In the process they may be required to constitute different types of contracts.

The promoters of the company may enter into contracts on behalf of the proposed entity which they may refuse to approve or consent once it is incorporated. These contracts include pre-incorporation contracts, provisional contracts and residuary contracts.

English Law: The Common Law

In English law the case Kelner V. Baxter (1866) 2LR 2CP 174[1] was one of the first case to consider pre-incorporation contracts. The court held a pre-incorporation contract shall exist when the individual who actually acted as a promoter or agent on behalf of the non-existing entity would be legally liable. Kelner v. Baxter thus confirmed that a company cannot ratify a contract, or purported contract, entered into on its behalf if the company was not in existence at the time a person purported to enter into a contract on its behalf.

Kelner v. Baxter also highlighted the potential for promoters to be liable on contracts they purport to enter into on behalf of an as yet unincorporated entity. What was not clear after Kelner v. Baxter was whether promoters were automatically liable in these situations, sometimes referred to as the “rule of law” approach, or whether the promoter’s liability depended on whether it was intended that the promoter be a party to the contract, sometimes referred to as the “rule of construction” approach.[2]

But while considering the case Newborne v Sensolid (GB) Ltd [1954] [3] the court took a different approach. A consignment of tinned ham was sold to Sensolid under a contract headed "Leopold Newborne (London) Ltd" and ending "Yours faithfully, Leopold Newborne (London) Ltd" and signed by Leopold Newborne. Sensolid refused to take delivery of the ham. It was held that neither the then unincorporated company nor Mr Newborne personally could sue on the contract. Lord Goddard said: This contract purports to be a contract by the company; it does not purport to be a contract by Mr Newborne. He does not purport to be selling his goods but to be selling the company's goods. The only person to have any contract here was the company, and Mr Newborne's signature merely confirmed the company's signature...In my opinion, unfortunate though it may be, as the company was not in existence when the contract was signed there never was a contract, and Mr Newborne cannot come forward and say: "Well, it was my contract."[4]

The English Court of Appeal held that the correct approach was a rule of construction approach. The real test was whether the promoter was intended, in the circumstances, to be a party to the contract or not. It was held that given the way in which the contract was signed by Leopold Newborne it was intended to be a contract with the company and only the company. In other words, given the way in which it was signed it indicated that it was not intended that Leopold Newborne be a party to the contract himself. Thus Leopold Newborne could not enforce the contract in his own name.[5]

In Buffington v. Bardon 80wis 635(1891) the English court observed that: “The law is that a corporation is liable for its own acts only after it has a legal existence. Until that time no one whether a promoter or not can sustain to the corporation the relation of agent, were this not so, we would have an agent without a principal, which is an absurdity”. That the contract should be between the contractor and the company, in which case the company being non –existent, there is no contract at all & no one is liable on it.[6]

Under section 51 of the Companies Act 2006, subject to any agreement to the contrary, the person purporting to act for the company, or as an agent of the company, is personally liable on the contract (Phonogram Ltd v Lane [ 1982 ] QB 939). It was held that such a person can also enforce a pre-incorporation contract (Braymist Ltd v Wise Finance Co Ltd [2002] EWCA Civ 127, [ 2002 ] 3 WLR 322).[7]

High Court of Australia

Considering the case Black v. Smallwood & Cooper (1966), 117 C.L.R. 52 the High Court of Australia took the similar rule of construction approach to Kelner v. Baxter. Western Suburbs Holdings Pty. Ltd. was not incorporated at the time and Smallwood and Cooper signed as directors thinking the company had been incorporated and that they were directors. The plaintiffs wanted to impose liability on the basis of a rule of law reading of Kelner v. Baxter saying that a contract was clearly intended and since it could not be with the principal (i.e. the company) which was not in existence it must have been with the purported agents Smallwood and Cooper personally.[8]

The majority of the court followed the earlier English case of Newborne v. Sensolid Ltd.

It was held that Kelner v. Baxter was not authority for the principle that an agent signing for a non-existent principal is bound.[9] Wickberg v. Shatsky (1969), 4 D.L.R. (3rd) 540 (B.C.S.C.) is a British Columbia case that also addresses the question of the interpretation of Kelner v. Baxter and addresses the possibility of an action against the promoters on the basis of a breach of warranty of authority.[10] The court held that it is not the case that a person signing on behalf of a non-existent company is automatically personally liable.[11]

The common law position created a risk for both the promoter and the third party that there would be no enforceable contract. Black v. Smallwood and Wickberg v. Shatsky involved cases in which the third party could not enforce the contract against the company. Newborne v. Sendolid Ltd. involved a situation in which the neither the promoter nor the company could enforce the purported contract. This creates a risk that reliance on the purported contract will be defeated along with the potential for an unjust enrichment of promoters at the expense of third parties or third parties at the expense of promoters.[12]

Pre-contractual liability

The German legal system was the most receptive to the idea of pre-contractual liability. The first one to point out the need to introduce the concept of pre-contractual liability for failure to observe the fair conduct (good faith) rule, was the German lawyer Rudolf von Iering.[13] In India the Specific Relief Act 1963 provides provisions for enforcing performance against a company where its promoters have entered a pre-incorporation agreement on behalf of the company. Section 19(e) of the act can be invoked only if the company after its incorporation have approved and accepted the contract and have communicated its acceptance or approval to the other contracting party.

According to section 230 of the Indian Contract Act an agent cannot enforce a contract personally entered by him on behalf of his principle, nor he can be personally liable if he clearly mentions at the time of entering the contract that, he is only acting on behalf of the principle as an agent and so he is not personally liable under the contract. Therefore applying this theory the contract can be infructuous as none of the parties is legally liable under the contract.

Nevertheless, section 15(h) and 19(e) of the Specific Relief Act provides specific answer to this. Section 15 states as follows:

15. Who may obtain specific performance.- Except as otherwise provided by this Chapter, the specific performance of a contract may be obtained by-

(a) any party thereto;

(b) the representative in interest or the principal, of any party thereto: Provided that where the learning, skill, solvency or any personal quality of such party is a material ingredient in the contract, or where the contract provides that his interest shall not be assigned, his representative in interest of his principal shall not be entitled to specific performance of the contract, unless such party has already performed his part of the contract, or the performance thereof by his representative in interest, or his principal, has been accepted by the other party;

………………….

(h) when the promoters of a company have, before its incorporation, entered into a contract for the purposes of the company, and such contract is warranted by the terms of the incorporation, the company: Provided that the company has accepted the contract and has communicated such acceptance to the other party to the contract.[14]

The section enables pre incorporation contracts valid even though it is slightly contrary to the common law principles to a certain extent. Going by the act specific performance of a contract is enforceable against a company where its promoters or agents have entered into a valid contract on behalf of the company before its incorporation. In such a situation a contract is acceptable by the stipulations of the company's incorporation.

The Madras High Court while considering the case Weavers Mills Ltd. v. Balkies Ammal [AIR 1969 Mad 462][15] had made a comprehensive decision. The promoters of the company had consented to buy for the company some properties on behalf of the company to be incorporated. After incorporation structures were constructed on the property by the company after assuming possession. The court took its view that even if the properties were not conveyed on to the company at the time of making the contract by its promoters the company's title over the property could not be set aside.

Therefore, in India, despite the fact that pre incorporation contracts are entered into by promoters or agents of the company before the company's existence they are legally enforceable and has contractual obligations that continue to exist under the Specific Relief Act.

Vinitha Prasannan
Google+

[1] http://www.nls.ac.in/distanceeducationnotes/MBLI/Decembercorporatelawnotes.pdf

[2] http://www.law.uvic.ca/mgillen/315/documents/Ch15-Pre-IncContracts.pdf

[3] http://www.law-essays-uk.com/revision-area/company-law/cases/newborne-vs-sensolid.php

[4] Ibid

[5] http://www.law.uvic.ca/mgillen/315/documents/Ch15-Pre-IncContracts.pdf

[6] Ibid

[7] http://law.jrank.org/pages/16822/pre-incorporation-contract.html

[8] http://www.law.uvic.ca/mgillen/315/documents/Ch15-Pre-IncContracts.pdf

[9] Ibid

[10] Ibid

[11] Ibid

[12] Ibid

[13] Alyona N. Kucher Doctor of Law, Moscow State University School of Law, Russia -paper rtf

[14] http://www.indiankanoon.org/doc/1999481/

[15] http://legalservices.co.in/articles/article/pre-incorporation-contracts-134-1.html

MEDIATION SERVICES | ONLINE MEDIATION SERVICES | MEDIATION SERVICE

noreply@blogger.com (bizandlegis) — Thu, 24 Mar 2011 21:45:00 -0700

MEDIATION SERVICES | ONLINE MEDIATION SERVICES | MEDIATION SERVICE

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Saluting Women Reservation Bill- A Step towards Women Empowerment

noreply@blogger.com (bizandlegis) — Thu, 24 Mar 2011 21:13:00 -0700

"O Lord Why have you not given woman the right to conquer her destiny?

Why does she have to wait head bowed,

By the roadside, Waiting with tired patience,

Hoping for a miracle in the morrow?"[1]

--------- Rabindranath Tagore

All the way through history women have been placed in an inferior status than men in various societies throughout the world. Even though there are differences of opinion regarding the status of women in ancient India, many scholars believed that women used to enjoy equal status with men in all fields of life in those days. It is to be inferred from ancient Indian literary works that suggests that women were educated in early vedic period. Approximately about 500 BC, with the coming of Dharmasathra tradition of Hinduism and the incursion of Babur and the mughal dynasty and later on Christianity had paved way for the decline of woman’s status in India.

Status of women in India was further deteriorated during the medieval period evidenced by sathi, child marriages and forbiddance of widow remarriages within the society. This period is considered to be the “dark age” for women in India. One of the major reasons for such deterioration was foreign invasion. These invasions brought with them their culture which is still reflected in our society. The Muslim evasion in India had brought the purdah system among women in the country.

Although these conditions prevailed in those periods there still existed some women who excelled in their fields of politics, education, religion etc. In spite of the fact that modern era prohibits traditions like sathi, jauhar[2], child marriages etc., in some parts of remote India these practices are still in existence. Pardah has become even more prevalent in recent period. Issues related to women’s identity and status has become much more complex due to civilization and today’s modern technology.

Some of the major issues faced by Indian women in today include Malnutrition, poor health, maternal mortality, lack of education, mistreatment, overwork, lack of power, marriage, dowry, female infanticide and divorce. Considering these aspects the issue of identity and status to women in India has to be considered in a broad spectrum.

In India during the period of British rule, women were enfranchised on the same terms as men under the Government of India Act of 1935; following independence, the Indian Constitution, adopted in 1949 and inaugurated in 1950, established adult suffrage.[3] Sarojini Naidu headed a deputation of the Women's India Association, which met with the British viceroy to demand the vote in 1919. The Indian National Congress supported woman suffrage. In 1950, soon after Indian independence, women were granted the vote.[4]

Today Indian women are struggling their way to find a space in all fields of the society along with men. Women politicians were rarely seen in the past as compared to women in today’s legislative processes. As the parliamentary method of legislation is the basis of democracy in India, the parliament has to be legitimate machinery that helps to enhance the country’s progress. Therefore, the citizens of the country shall not be divided on the basis of gender.

As a realization to the above thought the draft proposal for 33.3 % of women’s reservation in parliament and state legislatures was first put forth by the United Front Government under the leadership of H. D. Deve Gowda. The bill was first introduced in Lok Sabha on September 12, 1996.[5] From then onwards the bill has been introduced several times in parliament but was not able to pass due to lack of political support and the male chauvinistic attitude of the existing members.

Each individual is distinct in his/her own way regardless of the gender. Some people may be more efficient than the other due to different factors surrounding their upbringing. But some may argue about the need for women’s reservation as this alone cannot bring a change in society’s attitude towards women. Even though reservation or division of power between men and women is not a sole tool for changing women’s status in India, this can certainly be considered as a stepping stone towards women’s empowerment.

One aspect is certainly worth appreciable as this women’s reservation bill was passed with a striking majority. The Bill’s rotational method of reservation will make two-thirds of parliament, about 360 members, one-term MPs. 181 women’s seats will get reserved in a general election, and 181 other general seats will be reserved for women in the following election.[6]

Granting space in the legislative process may not be sufficient to change the status of women in the country. Today hundreds of women in India are still left to face the atrocities of the society. Women may be in a better position to understand her problems in relation with the existing social and political environment prevalent in the county. There are sufficient women in the country who are capable of running the legislative process and they shall be given an opportunity to exercise their rights. It is now evident that for the social and economic development of the country participation of people beyond any gender barrier is highly essential. Even though the percentage of women in our parliament shall not be a deciding factor in changing present attitude of the society towards women, it surely can bring up a positive change in the mind of people.

India has the history of great women leaders who proved to be capable of distinct administrative capacity. In the year 1966 India Gandhi caught the news headlines by becoming the female head of the State. In the recent years there has been an increase in the rate of women leaders in India and around the world. Many political parties like NCP had favoured passage of the women's reservation bill by the Lok Sabha in order to provide political empowerment to the fair gender. India has passed laws that make it mandatory for local governments to include women. [These laws do not apply to state and national level legislatures.] One third of the seats in local bodies—gram or village panchayats, municipalities, city corporations and district bodies—are "reserved" for women.[7]

Elections to zilla and taluk panchayats will see 50% reservation for women.

Governor H R Bhardwaj has approved the Panchayat Raj Act (Amendment) Bill, 2010, paving the way for enhancing women's reservation from the existing 33% to 50%, and use of electronic voting machines (EVMs) in elections to panchayat raj institutions.[8] The Panchayat is a system of village-level (Gram Panchayat), block-level (Panchayat Samiti), and district-level (Zilla Parishad) councils, members of which are elected by the people, and are responsible for the administration of local public goods. Each Gram Panchayat (GP) encompasses 10,000 people in several villages (between 5 and 15).[9]

The Left Front government in Tripura has decided to enforce 50 per cent reservation for women in the elections to the Agartala Municipal Council and the 15 nagar panchayats.[10] The amendment bill has been passed in the Lok Sabha of Jharkhand and in the Jharkhand Panchayat Election 2010 there will be a reservation of 50% for the women. Bihar, Uttarakhand, Andhra Pradesh, Gujarat and Madhya Pradesh have already implemented the policy of providing 50% reservation for women at the local level. Enhanced reservation will be applicable to the total number of seats to be filled by direct elections, offices of chairpersons, and seats and offices of chairpersons reserved for scheduled castes and tribes. At the national level, of the total elected representatives of panchayats (28.1 lakh approx), 36.87% are women. With the proposed constitutional amendment, the number of elected women representatives is expected to touch more than 14 lakh.[11]

Even though women will be faced with substantial difficulties in politics considering her other responsibilities than men, the participation of efficient women with great developmental plans is what our country need today.

Submitted by Vinitha Prasannan

****************

[1] Words of Rabindranath Tagore quote from http://www.mapsofindia.com/culture/indian-women.html

[2] Jauhar and Saka refer to the honorary self killings of men and women of the Rajput clan in order to avoid capture and dishonour at the hands of their enemies

[3] http://teacher.scholastic.com/activities/suffrage/history.htm

[4] Women's suffrage in Asia

[5] http://news.rediff.com/special/2010/mar/08/whats-the-womens-reservation-bill-all-about.htm

[6] India’s Women’s Reservation Bill - Rakesh Mani

[7] Women in Panchayati Raj: Grassroots Democracy in India Experience from Malgudi by Poornima and Vinod Vyasulu¨

[8] http://timesofindia.indiatimes.com/city/bangalore/Woman-power-in-panchayat-elections/articleshow/6423954.cms

[9] The Impact of Reservation in the Panchayati Raj: Evidence from a Nationwide Randomized Experiment

by Raghabendra Chattopadhyay and Esther Duflo ∗

[10] http://www.telegraphindia.com/1100828/jsp/northeast/story_12856931.jsp

[11] Ibid

India s Accession to Madrid Protocol

noreply@blogger.com (bizandlegis) — Tue, 22 Mar 2011 02:41:00 -0700

India’s Accession to Madrid Protocol- A new arrow in the quiver of Indian Trademark Law

Introduction

ONE application, in ONE place with ONE set of documents in ONE language with ONE fee in ONE currency resulting in ONE registration with ONE number and ONE renewal date covering more than ONE country [1]

In essence, this is what the Madrid Protocol aims to achieve while providing for international registration of trademarks. In India there is no system yet wherein a single trademark application is sufficient to protect the trademark right internationally. At present, a person desirous of obtaining registration of his trademarks in other countries has to make separate applications in different languages and pay different fees in the respective countries. There is no provision under the Trademarks Act, 1999 to facilitate Indian as well as foreign nationals to secure simultaneous protection of trademarks in other countries. On 8th February 2007, the Union Cabinet ratified India’s accession to the Madrid Protocol, which will provide extensive protection to Indian trademarks overseas and facilitate foreign firms to file their trademarks in India.[2] “The accession would facilitate speedy registration of Indian marks in different markets worldwide and promote business confidence in the Indian Intellectual Property Rights system globally”, Finance Minister P. Chidambaram told reporters after a meeting of the Cabinet Committee on Economic Affairs (CCEA) on the same day. However, India has clearly specified that it intends to join the Madrid Protocol for the international registration of trademarks and not the Madrid agreement (difference between the two discussed further). The Union Cabinet gave its approval for India’s accession to the Madrid Protocol in February 2007. Steps are now being taken to amend the Trademarks Act 1999 and hence a Bill has been introduced in the Parliament to start the necessary procedure for accession to the Protocol. The Indian Trademarks Rules, 2002 will also be amended pursuant to the amendments in the Trademarks Act, 1999.

India’s accession to the Protocol - Pros & Cons

The Indian trademark practice of filing applications in each country for registration and tracing them simultaneously is quite time consuming and expensive. For that reason, it is a boon for India that it has become a member of the Madrid system, and we should realize the advantages of the same since it enables an applicant company seeking international registration to file only one application and pay only one fee in local currency.

The trademark protection under Madrid Protocol may be extended to additional jurisdictions at any time, as and when they join the Madrid system. A mark registered under the Madrid system is deemed to get the same protection as if it is being directly registered in each country. If the trademark office of a designated country does not refuse protection within a specified period, the protection of the mark is the same as if it had been registered by that office.

It is also pertinent to note that under the Madrid system the applicant can make any change of name, address and so on and so forth and also renew the registration across all applicable jurisdictions through a single administrative process.

The pharmaceutical industry is the major beneficiary of India’s decision to join the Madrid Protocol and the benefit derived by the Pharmaceutical industry is also seen to have percolated to other industries such as Coffee, Tea, Cocoa and Electronic industry[3]. Though the corporate houses are set to gain a lot by this step taken by India but it will not be so for the small sector industries owing to the high cost involved in registration.

Another major criticism is that the Madrid Protocol still retains ‘dependency’ of the international registration on the existence of the basic registration. Although under the Madrid system the number of international registrations subjected to a central attack is less than 1%[4], there seems to be a lack of policy consideration behind inserting such a provision. This is especially so when each national office has been given sufficient time to enable them to invalidate trademarks based on their domestic law, including opposition proceedings.

Further, if the registration in India is invalidated on the ground that the trademark is in violation of an earlier mark,[5] then the impugned mark automatically loses its protection in other countries even if the infringed earlier mark did not even exist in that other country!!! However, the risk of central attack is mitigated by the introduction of the possibility of “transformation”. Thus, the filing date of the international registration will be maintained. Although, the Protocol mitigates such attacks by way of the principle of transformation, transforming the application into a direct national application may be more costly and time-consuming than filing separate national applications[6].

In the fairness of the scheme, it seems beneficial for India to have joined the Madrid Protocol and help Indian business community to get international registration of their trademarks at affordable cost and on a time bound manner. However, infrastructure and the resources available to Indian trademark registry need to be strengthened and training has to be imparted to the officials of Trademarks Registry to be able to handle such international applications. Similar training is also desirable for the legal fraternity with assistance from WIPO.

It is often found that the filing rate is quite high in case of member countries having depository system as against the countries which follow comprehensive system of examination of applications for registration of trademark. Accordingly, the filing rate of application for registration of trademarks in India is quite high and the infrastructure and resources available with the Indian Trademark Registry are insufficient as compared to other countries having lesser or same filing rate. Although the Indian Trademark Registry has cleared the backlog of five years by ad hoc measures so that it could be in a position to join Madrid Protocol, yet it needs a long term strategy so as not to allow the backlog to resurface since the human mechanism cannot be sustained for long. This requires strengthening of the infrastructure and raising IT level supports[7].

The IT system in the Indian Trademarks Registry needs a holistic revamping for which strong support is needed from Indian Government and WIPO, together with the assistance of a team of dedicated officers. As of today, the working strength of officers therein is sufficient to discharge the day to day statutory duties. If these officers are diverted, a strong possibility of the backlog resurfacing exists. A solution for this is to hire experts from technical as well as legal fields.

It is often debated that the concept of e-filing cannot be achieved by India. But the Intellectual Property Offices in India have commenced e-filings of patents and trademark applications. Now applicants can file their patent and trademark applications from anywhere in the world at any time as per their convenience with the help of the internet. Payments can also be made through the Payment Gateway of authorized bankers, which will save time and money and the hassles involved in visiting and filing the applications in the offices[8]. A major program of modernization of the infrastructure of Intellectual Property offices of India costing Rs. 153 crore was implemented during the 10^th Five Year Plan. Computerization has been one of the key components of the modernization initiative. As part of this, facilities have been created for e-filing of patent and trademark applications[9]. Soon, the complete process of grant of patent or registration of trademarks will become online and the Indian Patent and Trademarks Offices will function almost as paperless offices. The modules for the e-filing and online processing have been developed by the National Informatics Centre. Thus with the launching of the e-filing facility the first phase of the modernization drive comes to an end.

Factors like difficulties over delay and the differences in level of strictness of Indian Registries compared to their foreign counterparts are such that can have serious implications in India while implementing the Madrid Protocol. There would be a penalty on Indian trademark owners if the Indian trademark registry does not transmit and ensure receipt of their international applications by the International Bureau within two months of filing. In such an event, instead of the date of filing, date of receipt by the IB would become the date of the international application. If the Indian trademark registry does not expedite its processing it would put its nationals at a relatively disadvantaged spectrum since offices of other countries work faster.

It is also notable that to oppose the extension of international applications into India, notice of publication of both, international registrations and of recordals of extension, would have to be taken from the Gazette of the International Bureau even though it warrants that a few copies shall be furnished to the Indian trademark registry. From the date of the international registration or recordal in favour of a foreign trademark, its protection in India will also commence as if the mark had been deposited directly with the Indian trademark registry. This will require the Indian trademark owners to engage internationally savvy trademark agents. Though this step would result in a burdensome expense for some Indian trademark owners yet, it is necessary so as to safeguard their rights.

The Bill provides that the Indian Registrar of trademarks will be empowered to take up applications from the countries that are the part of this Protocol; But this sure to become an additional burden for the Registrar of Trademarks Office. Further, no clear procedure has been laid down in the Bill regarding the processing of the international and domestic applications.

Further, the Bill also fails to look into the aspect of providing protection to the non-visible marks. In the present scenario, protection of these non-visible marks has gained a lot of importance on the international front. But the proposed Bill does not contain any references about this new emerging branch of trademark.

Conclusion & Suggestions

Even though the Trademarks (Amendment) Bill, 2007 is pending before the Parliament for consideration, India still has to bring several changes in the existing infrastructure. In this regard, we can take a clue from South Africa. In September 2003, South Africa approved the ratification of the Madrid Protocol but temporarily suspended their accession to the Protocol. This was done with a view to allow the Companies and Intellectual Property Registration Office (CIPRO) time to reduce the period of examination of trade mark applications before the Protocol kicked in. This was done so as to reduce the backlog of trademark applications awaiting examination. However, when we think of India, we have to admit that we have not given enough thought to this particular aspect while implementing the Madrid Protocol even though India has no better record than South Africa in the time taken for examination of applications.

Accordingly, before implementing the system care should be taken as regards the possible ways to reduce the backlog of applications already awaiting examination as well as the time taken by the trademark office in examining these applications. It is submitted that if the delay in examination of application is not reduced, considerable loss would have to be borne by the Indian proprietors.

I would like to put forth a few suggestions which might help us to cope better with the changes that will be brought about by the Amendment in the Trademarks Act, 1999. These suggestions are :-

· Update the government website and have facilities for online make trademark search

· Make trademark journals and records of the already registered trademarks available online.

· More IT trained personnel should be inducted and there should be a complete computerization of records besides making substantial additions to the main infrastructural facilities.

· The Indian Trademark Journal should contain special issues dealing with Indian marks that should be made available in the Gazette of the International Bureau so that engaging of internationally savvy trademark agents can be avoided and thus, the time and cost involved can be reduced.

· An additional provision should be added in the Bill by way of which the definition of goods and services in the Bill would comply with the provisions of the NICE agreement.

· The concept of non-visible marks and their protection should be included in the proposed bill.

· The e-filing system should be started in full-fledged manner and it should not remain merely on paper.

· Government should provide funds for modernizing the IP infrastructure. For that requisite funds should be allocated and provided for in the country’s annual budget

· Provisions should be included in the Bill regarding the procedure of international registration.

Now that India has acceded to the Madrid system, major changes (as specified above) in the prevailing Indian trademark registration regime are warranted, which India is already in the process of adopting. Thus, the step taken by India of acceding to the Madrid Protocol could not have been more appropriate than anything at this point of time, with more and more Indian companies going global.

References :

[1] The Madrid system for international registration of marks, (International Trademarks Association, New York) 2000, p.8, http://www.inta.org/ (10 October 2007)

[2] “India accedes to Madrid Protocol on trademarks protection”- THE HINDU- Online edition of India’s National Newspaper, Friday, Feb 9, 2007.

[3] Should India join Madrid Protocol, K.K.Sharma, Advocate and IPR consultant, Halsbury’s Law, March 2008.

[4] Protecting your trademark abroad: 20 questions about Madrid Protocol (WIPO, Geneva) 2001, at p.13.In 2000, nearly 23000 international registrations were effected; during the same period, only 140 international registrations were cancelled (in whole or in part) as a result of the central attack.

[5] Trademarks Act 1999, sec 33

[6] Celedonia Baila.H. & Epstein Jeffrey H, Limitations of the Madrid Protocol for US companies, Practising Law Institute: Patents, Copyrights, Trademarks and Literary Property, Course handbook series, 387 (1994), 257-284

[7] Online registration of trademark applications in all the regional offices and headquarters has begun from October 2002 and a digital database library on CD-ROMs of 150000 Trademarks Certificates and 1250 Trademarks Journals has been created.

[8] India to file application for ISA and IPEA recognition soon,- Kamal Nath launches e-filing of patent and trademark applications. The Hindu, 20 July 2007. Shri. Kamal Nath, the former Union Minister of Commerce and Industry, has launched the e-filing of patent and trademark applications, at the function oraganised by the Department of Industrial Policy and Promotion(DIPP).

[9] There are only a dozen or so countries which have e-filing facilities at present and India now gets into this elite group consisting of countries like USA, Japan, South Korea, China and the European Patent Office.

CYBERSQUATTING IN INDIA

noreply@blogger.com (bizandlegis) — Wed, 16 Mar 2011 03:39:00 -0700

With the arrival of Internet, the world is witnessing a new change in the field of communications. Everybody has to do something or the other with the Internet. The term cyber squat may be defined as:

“Cyber squatting occurs when domain names bearing a resemblance to famous trademarks are registered by persons hoping to sell the registration to the corresponding trademark holder. Typically, in such cases, persons who have absolutely nothing to do with the name, virtually pirate the name by obtaining a SLD registration with the .com TLD of a well-known company or brand’’[1]

Most common examples of cyber squatting include the reservation of sites that include the names of celebrities or companies. It guarantees the cyber squatters a profit whenever a celebrity or company decides to set up an official Web site and needs that domain this requires registration of a particular domain name and web site under the domain name system.

Courts on cyber squatting

These practices include the deliberate bad faith registration as domain of well-known trademarks with an intention to sell the domain to the owners of those marks (or rivals owners) or simply to take unfair advantage of the reputation attached to those marks. In technical parlance, this is called cyber squatting. It thus involves the use of domain name by a person with neither trademark registration nor any inherent rights to the name.

Analysis of few cases clearly depicts the trouble generated by cyber squatting:

1. The first reported Indian case is Yahoo! Inc. v. AKASH ARORA[2] wherein the plaintiff, who is the registered owner of the domain name "yahoo.com" succeeded in obtaining an interim order restraining the defendants and agents from dealing in service or goods on the Internet or otherwise under the domain name "yahooindia.com" or any other trademark/ domain name which is deceptively similar to the plaintiff's trademark "Yahoo".

2) In Rediff Communications LTD, v Cyber booth[3] plaintiff, the owner of the well-known portal and domain name rediff.com filled for injunction against the defendant, registrant of the domain name "rediff .com". There was a common field of activity and the judge was satisfied that there was a 'clear intention to deceive' and granted interim relief to the plaintiff. The judge stated, "A domain name is more than an Internet address and is entitled to the equal protection of trademark."

3. In, Titan Industries v Prashant Koorapti & Others the defendant registered the domain name "tanishq.com". The plaintiff Company, which has been using the trade mark "tanishq" with respect to watches manufactured by it, sued for passing off and alleged that the use of the domain name by the defendants would lead to confusion and deception and damages the goodwill and reputation of the plaintiffs. The Delhi High Court has granted an ex-parte ad-interim injunction restraining the defendants for using the name "TANISHQ" on the Internet or otherwise and from committing any other act as is likely to lead to passing off of the business and goods of the defendants as the business and goods of the plaintiff.

4. In Marks & Spencer PLC vs. One in a Million[4] , the High Court of Justice, Chancery Division, enjoined the activities of two cyber dealers and their related companies, who had obtained and were offering for sale or "hire", numerous domain names containing well known marks. In this group of cases, the Court enjoined "the threat of passing of" (a threat which would become a reality if an offending domain name was sold to and used by a stranger to the trademark owner), issuing a warning to cyber squatters:

"Any person who deliberately registers a domain name on account of its similarity to the name, brand name or trademark of an unconnected commercial organization must expect to find himself on the receiving end of an injunction to restrain the threat of passing off, and the injunction will be in terms which will make the domain name commercially useless to the dealer”[5]

Conclusion

In India due to the absence of requisite cyber laws to prevent cyber squatting, the cases involving cyber squatting is decided under the relevant provision of trademark laws. In UK, if someone has registered a domain name incorporating a trademark, then the domain name holder could be in breach of that states “a person infringes a registered trademark if he uses identical or similar to the registered trademark in relation to identical or similar goods or services".[6]

It can be now said that the question whether cyber squatting would amount to either a trademark infringement or a passing off is a difficult one to answer. The need of the hour is therefore for the legislature to catch up with the technical developments and pass a separate law prohibiting cyber squatting or any other malafide registration of a domain name.

Hence, it is up to legislature to decide the fortune of cyber squatting and take speedy action to curb this virus embraced crime, otherwise what the result will be nobody, even cyber law experts don’t know.

[1] Menhard- Francha Roffe, “Internet Issues: Pirates- Censors- and Cybersquatt”.

[2] 1999 PTC (19) 201 (Delhi)

[3] 2000 AIR(Bom) 27)

[4] CH 1997 M.5403

[5] Ibid

[6] Section 10 of the Trademark Act, 1994

COPYRIGHT INFRINGEMENT AND SEARCH ENGINES

noreply@blogger.com (bizandlegis) — Mon, 14 Mar 2011 06:00:00 -0700

World Wide Web brought along with it access to hyper linked documents on the Internet. Information over the Internet now was just a click away. Websites over the Internet are ready to provide all sorts of information to the web users. There has been a tremendous rise I traffic over the Internet and it is the search engines which have ensured the free flow of internet. These search engines provide information to the web user by the use of urbane technologies. And the use of these technologies has raised many issues surrounding copyright laws. Amidst these issues, the most intriguing issue these days is holding a search engine liable for copyright infringement. Over the past many years there had been several suits filed over various courts of law worldwide with regard to the same. In Gordon Roy Parker V. Google inc[1]court held that the defendant must show that the defendant in committing infringing acts engaged in ‘Volitional Conduct’. Google Search Engine in Blake A. Field V. Google Inc[2] escaped from similar charges through the argument that it was the user who created copies of the copyrighted work and not Google, the cache shown by them was an automated process.

But the US district court in Perfect 10 V. Google Inc.[3] held Google liable for direct copyright infringement through thumbnail display. But the decision was reversed by the Ninth Circuit in Perfect 10 V. Amazon.com[4].The decision discarded direct copyright infringement by the search engine it remanded the case for deciding the contributory or secondary copyright infringement. The Beijing High Court adjudicating the Yahoo! China Case[5] upheld that the Search Engine was liable for joint copyright infringement.

Copyright is an exclusive statutory right of literary (authors, playwrights, poets), musical (composers, musicians), visual (painters, photographers, sculptors), and other artists to control the reproduction, use, and disposition of their work[6].Article 27 paragraph 2 of the Universal Declaration of Human Rights (UDHR)[7] provides as a basic right that ‘everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.’ It guarantees protection against copyright infringement. Liabilities in copyright infringement:

Direct Liability - To succeed on a claim for direct copyright infringement, a plaintiff must prove two elements:

1. Ownership of the copyrighted material, and

2. Violation of one of the exclusive rights of the copyright owner by the defendant.

Vicarious Liability- Courts have imposed vicarious liability where parties

1. receive a direct financial benefit from the infringement; and

2. they have the right and ability to supervise or control the infringement.

In Playboy Enterprises, Inc. v. Frena[8] the court found a Bulletin Board Service (BBS) operator vicariously liable for permitting the unauthorized uploading of images from the plaintiff’s magazine to the Internet for commercial gain.

Search Engines and Infringement

Search engines allow millions of users to locate content over the internet. Search engines operate algorithmically or are a mixture of algorithmic and human input. The operation of a search engine is based upon Web Crawling, Indexing & Searching. Generally a typical web search engine stores information about the web pages over the WWW. The pages are retrieved by an automated Web browser called Web Crawler or Spider. The content of pages so 'Crawled' are then analyzed and 'Indexed'. A database called ‘index database’ is maintained having information about it, also ‘cache technique’ is used to store words of every web page. When a user enters a 'Search text' the search engine matches its cache or database and provides the best matching web pages with a short summary about the web page[9].

(i) Related Cases - Cases mentioned out here are those cases which act as precedents in cases of liability of search engines for copyright infringement.

· Le Hotels Méridien v. Google France[10] - Decided in the year 2004 by French Court, the case alleged the search engine for Trade mark infringement. In this case Google was held to be an infringer and court held that Google played an active role in encouraging advertisers to infringe registered trademarks. Defense of disclaimer by Google was discarded[11].

· A & M Records Inc V Napster Inc[12] - Napster a P2P Network company was held liable for the contributory infringement by the Ninth Circuit Court of USA. It was alleged that Napster provided the users with the Music Share Software for uploading and downloading songs from the P2P network. Napster contended that the Sony doctrine[13] shielded it from secondary liability because its software and network were capable of substantial non-infringing uses. The Ninth Circuit court rejected such defense and held that Napster had constructive knowledge of infringement and facilitated and helped users by maintaining indexing central servers and providing technical support to its users.

· MGM Studios Inc V. Grokster Ltd.[14]- Grokster and Streamcast were companies that distributed free software that allowed computer users to share electronic files through P2P network. The users were involved in downloading copyrighted materials through the network. The petitioner claimed that the defendant provided for the software through which several files were transferred of which they had copyright. The Ninth Circuit didn’t held Grokster for any such infringement but on appeal to Supreme Court it was held liable for contributory infringement.

· Universal Music Australia Pvt. Limited V. Sharman License Holdings Limited[15]-
In September 2005, the Federal Court of Australia found KazaA liable for authorizing copyright infringement. Despite the fact that the KaZaA website contains warnings against the sharing of copyright files, and end user license agreement under which users are made to agree not to infringe copyright, it has long been obvious that those measures are ineffective to prevent, or even substantially to curtail, copyright infringements by users. The defendants had long known that the KaZaA system is widely used for the sharing of copyright files and such authorization was held to be infringement of copyright.

(ii) Direct Cases -The above discussed cases gave copyright owners the right to target companies rather than prosecuting individuals. As an outcome of such right several litigations came up in front of the court where online service provider was sued for online copyright infringement. Since the Search Engines were the key players in online sale and revenue generation they were targeted the most.

· Blake A. Field v. Google, Inc.[16]- In this case plaintiff Blake Field brought a suit against Google contending that by allowing Internet users to access copies of 51 of his copyrighted works stored by Google in an online repository, Google violated his exclusive rights to reproduce copies and distribute copies of those works. The Court held that

(a) Google did not commit direct copyright infringement because the process by which Google displayed the cache was an automated and non-volitional act in response to the user’s request. The court stated that Google was not creating copies of Field’s work; it was the user that was creating the copies.

(b) Google had an implied license to display Field’s works through its cached link. Field’s conduct reasonably could be interpreted as granting an implied license to Google to display the content of Field’s web site via the cached link.

(c) Google’s use of cached links constituted fair use. Google’s use of Field’s work was trans formative, which weighed heavily in favor of a finding of fair use. Google not only uses industry standard procedures to ensure that it does not display cached links if the owner of the page does not want them to appear, but it also provides an explanation on its web site regarding how a web page owner can request that it not display cached links. Google takes steps to ensure that users seeking an original web page through its search engine can easily access that page, and that viewers of the cached page know that the cached page is not the original page. Additionally, with respect to Field specifically, Google removed the cached links to Field’s works once it learned that Field had filed suit (and before Google had been served in the case).

(d) The court also found that Google was entitled to the protection of the safe harbor provided by Sections 512(b) of the DMCA[17]. That section states that a service provider will not be liable for copyright infringement by reason of “intermediate and temporary” storage of material on a system operated or controlled by the service provider if certain requirements are met. The court found that Google’s 14-20 day storage was “temporary and intermediate” within the meaning of the DMCA.

· Gordon Roy Parker v. Google, Inc.[18] - Parker posted writings on his own web site and on the Usenet, a community of electronic bulletin boards maintained by Google. Representing himself, Parker filed a seventy-two page complaint, with 129 paragraphs of factual and legal allegations, against Google and “50,000 John Does”, asserting direct and secondary copyright infringement on the basis of Google's automatic archiving of Usenet postings, creation of hyperlinks responding to inquiries, and excerpting of his web site. District Court of US dismissed claims charging Google with direct copyright infringement. The District Court held that Google has not engaged in the requisite volitional conduct necessary to be held guilty of direct copyright infringement because such copying is a by-product of the automated operation of Google’s search engine and related technologies. As such, Google’s acts are akin to a user’s use of its ISP to transmit infringing material to a third party, which do not give rise to direct infringement claims against the ISP.

· Perfect 10 V Google[19]- In this case California federal court granted a plaintiff’s motion for a preliminary injunction against the Internet search giant from creating and displaying thumbnail versions of the plaintiff’s copyrighted photos in Google’s image search results. Perfect 10 filed suit against Google and Amazon, alleging direct copyright infringement for Google’s “display” of full images through the frames, direct copyright infringement for the use of the thumbnails, and vicarious and contributory copyright infringement. Perfect 10 moved for a preliminary injunction.

(a) Perfect 10’claimed for direct copyright infringement of its exclusive right to ‘display publicly’ ‘distribute’ its copyrighted image. The court applied “Server test” The server test defines “display” as the act of serving content over the web. Because the full-size image appears on Google’s site only by way of in-line linking, and Google had not stored or served the full-size images, the court found that Google had not displayed the images for copyright purposes. But the court found that the use of ‘thumbnail’ images by Google was not likely ‘fair’ and amounted to infringing act.

(b) In-line linking is not copyright infringement because the images are stored and displayed on their original sites and not on the Google site. Thus, Google did not copy, display or distribute these images, as necessary to violate copyright law.

(c) Providing an "audience" for infringing websites and advertising those sites is not active encouragement to the public to visit those sites. Therefore search engines cannot be held liable for secondary or contributory infringement.

(d) Local storage is an automatic process that is typically non-commercial, and is likely fair use.

· Perfect 10 Inc. V Amazon .com[20] - In this the court held that although Google may facilitate a user's access and may be open to contributory liability, the assistance it provides does not constitute direct infringement of Perfect 10's display rights.

· Universal International Music B.V. EMI (Taiwan) Ltd v. Beijing Alibaba Information Technology Co. Ltd[21]-.In January, 2007, Universal Music Group, Warner Music Group, EMI Music Group and Sony BMG Music Entertainment Inc and others jointly sued Beijing Alibaba Information Technology Co. Ltd., the owner of ‘Yahoo! China’, for infringement of copyright in two hundred and twenty nine audiovisual works. On April 24, 2007, the Beijing Second Intermediate People's Court held that

(a) The plaintiff’s claim that ‘Yahoo! China’s’ conduct amounted to direct dissemination of the infringing music is rejected. Court said that the defendant's act, merely providing links without music content, should not be taken as directly disseminating the infringing songs through network.

(b) After receiving the Take-down notices, the defendant was put on notice that the plaintiff’s owned the copyright in the sound and video recordings and should have known that links were provided by its search engine to third party infringing websites even though they were not included in the sample URLs provided by the plaintiffs. The defendant thus failed to fulfill its obligation of removing all links to unauthorized music by only removing the links in the Plaintiff’s samples.

The court referred to Article 23 of ‘Regulation on the Protection of the Right to Network Dissemination of Information’ which provides:
“Where a network service provider provides any searching or linking service cuts off the link to any infringing work, performance, or audio-visual product after receiving a notice from the right owner according to the provisions of the present Regulation, it is not required to assume the liability to make compensation. However, when anyone is fully aware or should have known that any of the works, performance or audio-visual products it has linked to constitutes an infringement, it shall be subject to the liability of joint infringement.”Yahoo! China appealed to the Beijing High People's Court. And in December, 2007, the High Court rejected the appeal and upheld the decision made by the lower court.

· Viacom International Inc. V. Youtube Inc & Google[22]- Viacom filed a suit against Google, over copyright infringement. In the lawsuit that was filed against YouTube and its parent company, Google, Viacom had claimed that more than 150,000 unauthorized clips have been viewed for an astonishing 1.5 billion times.The US court dismissed the injunction suit and held that the action of the defendant neither make them liable for direct infringement nor for contributory infringement under DMCA. The cross-motion for a protective order barring disclosure of the source code for the Youtube.com search function was granted, and the motion to compel production of that search code was denied.

Conclusion

Internet changed the way by which the information was disseminated. In recent years there had been cases in which the Search Engines were held to be liable for copyright infringement yet it is one of the toughest job to survive one’s own suit against the defenses available to them. Defenses like “Fair Use”[23], “Implied License”[24] “Estoppel”[25], and many more defenses are still an open challenge for copyright owners to overpower.

As observed by Ninth Circuit in Perfect10 V. Amazon.com “….search engines have similarly massive repositories of information. The cost of filtering search results to eliminate copyrighted material, while low in individual instance, could have the net effect of compromising the integrity of the search engine itself ……….”.[26]If a copyright owner proves that the Search Engines specifically targeted them or induced infringement and generated profit from it the court will definitely come with decisions similar to Yahoo! China.

[1] 422 F. Supp. 2d 492

[2] 412 F.Supp.2d 1106

[3] 416 F. Supp. 2d 828

[4] 487 F. 3d 701 (9th Cir, 2007)

[5] Universal International Music B.V. EMI（Taiwan）Ltd v . Beijing Alibaba Information Technology Co. Ltd

[6] Webster’s New World Law Dictionary, 2006 Ed.

[7] http://www.un.org/en/documents/udhr/index.shtml

[8] 839 F. Supp. 1552 (M.D. Fla. 1993).

[9] http://searchenginewatch.com/2168031

[10] http://webcache.googleusercontent.com/search?q=cache:RnhVqLC1kOIJ:www.linksandlaw.com/adwords-google-keyword-lawsuit-France.htm+Le+Hotels+M%C3%A9ridien+v.+Google+France&cd=1&hl=en&ct=clnk&gl=in&client=firefox-a

[11] Ibid

[12] 239 F.3d 1004 (Ninth Circuit, 2001)

[13] Doctrine laid down in the case Sony Corporation of America V. Universal City Studios Inc , 464 US (1984) 417 The US Supreme Court held that “ if a product is capable of other non-infringing and ‘substantially lawful’ uses, the producer could not be held liable.”

[14] 125 S Ct 2764(2005)

[15] [2005] FCA 1242

[16] 412 F.Supp.2d 1106 (D. Nev. 2006)

[17] Digital Millennium Copyright Act , http://www.copyright.gov/legislation/dmca.pdf

[18] 422 F. Supp. 2d 492

[19] 416 F. Supp. 2d 828 (C.D. Cal. 2006)

[20] 508 F.3d 1146 (9th Cir. 2007)

[21] http://www.cultura.gov.br/site/wp-content/uploads/2009/02/apresenta_mesa7_daniel_seng.pdf

[22] No. 07 Civ. 2103, No. 07 Civ. 3582 (S.D.N.Y. June 23, 2010)

[23] Accepted in Perfect10 V Amazon.Com (supra 25)and played a vital role in reversing judgment of Perfect10 v. Google (supra 25)

[24] Accepted in Field V. Google (supra 21)

[25] Ibid

[26] Supra Note 22

CLIMATE CHANGE AND KYOTO PROTOCOL

noreply@blogger.com (bizandlegis) — Thu, 10 Mar 2011 21:37:00 -0800

INTRODUCTION

The Kyoto Protocol is an international agreement linked to the United Nations Framework Convention on Climate Change. The Kyoto Protocol was adopted in Kyoto, Japan, on 11 December 1997 and entered into force on 16 February 2005. 184 Parties of the Convention have ratified its Protocol to date. Kyoto Protocol sets binding targets for 37 industrialized countries and the European community for reducing greenhouse gas (GHG) emissions. It was recognized that developed countries are principally responsible for the current high levels of GHG emissions in the atmosphere as a result of more than 150 years of industrial activity; the Protocol places a heavier burden on developed nations under the principle of “common but differentiated responsibilities.”[1] Prior to Kyoto an international agreement was signed in Montreal, it was designed to control the use of ozone depleting chemicals. It has been ratified by almost all nations of the world including the United States where ratification was unanimous[2].The Montreal Protocol, the foundation for this process, stands as a success story. Its success owes a great deal to the actions not only of the United States government, which played an exceedingly aggressive role in producing the Protocol[3], but to American companies as well, which stood at the forefront of technical innovation leading to substitutes for ozone-depleting chemicals[4].But with climate change the situation and outlook of countries is altogether different.[5]

The Kyoto Protocol though ratified by majority of the nations, many countries are not complying with their obligations under the Kyoto protocol. Some of the countries which have ratified the Kyoto protocol including China have no obligations under the protocol at all, despite China being one of the significant emitters of green house gases. United States one of the prime advocates of Montreal protocol has still not ratified Kyoto Protocol. American companies have sharply opposed efforts to regulate greenhouse gas emissions, and have insisted that the costs of regulation are likely to be prohibitive[6]. Between 1990 and 2004, the United States experienced a decline in emissions of ozone depleting chemicals, to the point where such emissions are essentially zero. But in the same period, the United States experienced a rapid growth in greenhouse gases[7]. The same is true of many wealthy nations committed to the Kyoto Protocol, as a result, worldwide emissions of greenhouse gases are projected to rise at a rapid rate.

MONTREAL AND KYOTO

It is important to consider actions of United States and countries of the European Union with regard to Montreal and Kyoto Protocol. United States was the most important agent behind the Montreal Protocol. For ozone depletion, the United States first acted unilaterally and then sought international restrictions. For greenhouse gases, the United States has hardly acted unilaterally. For their part, European nations were significant obstacles to international regulation of ozone-depleting chemicals, favoring an approach of “wait and learn”; for climate change, they have been favorably disposed toward regulatory controls, with the United Kingdom in the forefront. This difference in approach can be attributed to the assessments of national interest, public opinion, and the role of powerful private actors[8].We have no option and are forced to ask why has the US enthusiasm with Montreal died down with Kyoto?

AMERICAN RESERVATIONS

Since the late 1980s, international organizations have shown a great deal of concern about climate change. In December 1988, a resolution of the United Nations General Assembly declared climate change to be a “common concern of mankind” and asked for a global response[9]. In 1989, the European Community agreed to support an international agreement to deal with the problem. In 1992, more than 180 nations, including the United States, signed the Framework Convention on Climate Change during the Rio Conference on Environment and Development[10]. In fact, the United States was the first industrialized nation to ratify the Framework Convention. Unlike the Montreal Protocol, the Framework Convention lacked quantitative limits for emissions reductions[11]. The absence of such restrictions was solely due to United States, which strongly resisted them.[12]

The Framework Convention stated that it would be desirable to “return by the end of the present decade to earlier levels of anthropogenic emissions of carbon dioxide and other greenhouse gases.”[13]The parties agreed to produce, a legal instrument that would establish quantitative limits for developing countries. In 1995, the parties to the Convention met in Berlin and agreed to set emissions limits at specific periods and to accept a protocol that would embody those limits[14]. US then appeared to support the “Berlin Mandate,” asking industrialized nations to accept restrictions on greenhouse gas emissions.[15] Other national leaders, however, were not enthusiastic about this commitment. In 1997, a unanimous Senate adopted Senate Resolution 98, which asked President Clinton not to agree to limits on greenhouse gas emissions if the agreement would injure the economic interests of the United States or if it would not “mandate new specific scheduled commitments to limit or reduce greenhouse gas emissions for Developing Country Parties within the same compliance period” as for the United States[16].The unanimous Senate concluded that any “exemption for Developing Country Parties is inconsistent with the need for global action on climate change and is environmentally awed,” and indicated that it “strongly believed” that the proposals under consideration “could result in serious harm to the United States economy, including significant job loss, trade disadvantages, increased energy and consumer costs, or any combination thereof.”[17]It is essential to remember in this regard that the same senate had a near unanimous vote for Ozone layer protection (Montreal protocol) but did not ratify the Kyoto protocol for green house gases emission.

In the complex Kyoto negotiations in December 1997, the United States did support regulatory limits, although relatively modest ones, arguing against reductions in emissions levels and instead for the stabilization of current levels[18]. The United States also urged several other steps: inclusion of the developing countries in the treaty through their acceptance of some kind of quantitative limits; a rejection of early deadlines in favor of a ten-year delay; and a base year of 1995 rather than 1990, which would make quantitative limits less stringent[19]. American negotiators made serious efforts to persuade the major developing countries to agree to limit their emissions at some future date, but they refused[20]. An explanation to this is that such nations, above all China and India, were aware that regulatory controls would impose significant burdens and costs.

The Protocol sets forth certain quantitative limits on greenhouse gas emissions. It was designed to ensure that, the nations would show a reduction of 5% over 1990 levels—a reduction that must be met in the period between 2008 and 2012[21]. For example, the United States was required to reduce emissions by 7%; Japan by 6%; and the European Union by 8%.The Kyoto Protocol however did not impose trade sanctions or other penalties on those who do not comply .The question which comes forth in all our minds is exactly why were these targets chosen .The answer being that national self-interest played a key role[22].Contrary to the widespread perception, it is not true that most of the world’s nations were willing to sacrifice much to deal with climate change, while the United States ultimately refused to do so.[23]

Under intense international pressure, the United States signed the Protocol on September 12, 1998[24].It would be an understatement to say that the signing was not well-received in Congress, which added a proviso to the 1999 Environmental Protection Agency Appropriations Act banning the agency from using appropriations “‘to propose or issue rules, regulations, decrees or orders for the purpose of implementation, or in preparation for implementation’ of the Kyoto Protocol.”[25] At that point, Vice President Gore indicated that the Protocol would not be submitted for ratification without meaningful participation by developing nations[26]. The whole process had an air of unreality to it, because everyone knew back in 1997 itself that the U.S. could never join the Protocol as drafted.”[27] In 2001, President Bush described the Kyoto Protocol as “fatally awed” and “effectively dead,” emphasizing the non participation of developing countries. President Bush in a key letter further stated that “I oppose the Kyoto Protocol because it exempts 80% of the world, including major population centers such as China and India, from compliance, and would cause serious harm to the U.S. economy.”[28] In fact the United States attempted to persuade other nations, including Japan, to reject the Protocol as well[29].

The Kyoto Protocol went into effect in 2005.Of the original participants in the process that led to Kyoto, the United States and Australia are the only non-ratifiers.

COSTS AND BENEFITS OF KYOTO

For the United States and the world, the benefits of the Montreal Protocol were projected to dwarf the costs. But it was not the same with Kyoto Protocol, the costs were high and benefits low. At the time of ratification, the proper analysis of costs was done by the Clinton administration. It was found that “modest” costs from the Kyoto Protocol would result in an $0.04 to $0.06 increase in the price of gasoline, and an annual increase in the average family’s energy bill of $70 to $110 by 2010[30]. A study by the Department of Energy projected substantial gasoline price increases from $1.39 to $1.91, and 20% to 86% increases in the price of electricity by 2010[31].A study done at the Wharton School[32], which projected costs in excess of these projections200— including a loss of 2.4 million jobs and $300 billion in the nation’s GDP, with an average annual cost of $2,700 per household, including a $0.65 per gallon increase in the price of gasoline and a near-doubling of the price of energy and electricity.

The anticipated benefits of $12 billion are hardly trivial, but they are dwarfed by the anticipated costs of $325 billion. For the United States, unilateral action to comply with the Kyoto Protocol may well produce no benefits at all, and on these projections, it would not be easy to defend in cost-benefit terms.

OTHER REASONS FOR RESERVATIONS

Other reasons which are considered to have influenced the US stand on Kyoto protocol are:

1. First, emissions from China, India, and other developing countries—whose substantial contributions to climate change are expected to grow much larger in the near future—are not regulated by the agreement at all.

2. Second, past emissions of greenhouse gases will contribute to warming; it follows that even a substantial reduction in future emissions would not eliminate the problem.

3. Third, the Kyoto Protocol requires the parties not to make substantial cuts in emissions, but

merely to return to a point slightly below emissions levels in 1990.

The larger point is that for the United States, the perceived values presented a much less favorable picture for the Kyoto Protocol than for the Montreal Protocol. The perceived costs of the Kyoto Protocol were much higher than the costs of the Montreal Protocol, and the perceived benefits of the former were much lower than the benefits of the latter.

CONCLUSION

For those who are concerned about the risks of climate change, it would be possible and even right to emphasize that the United States has been a principal contributor to those risks, and that the nation’s economic self-interest does not exhaust its moral obligations. To the extent that the

citizens of the United States have benefited from activities that inflict significant harms on other nations, those citizens are properly asked to help through reducing their own emissions, through paying other nations to reduce theirs, and through payments to ease adaptation. In addition, political pressure, including moral convictions, can play a role. But on the basis of the Montreal and Kyoto Protocols, it is best to assume that domestic self-interest will continue to act as an important motivating force. The position of the United States will not shift unless the domestic benefits of emissions reductions are perceived to increase or unless the perceived domestic costs drop, perhaps as a result of technological innovation. It follows that for the future, the task remains to devise an international agreement that resembles the Montreal Protocol in one critical respect: its signatories, including the United States, have reason to believe that they will gain more than they will lose.

[1] http://unfccc.int/kyoto_protocol/items/2830.php

[2] Montreal Protocol on Substances That Deplete the Ozone Layer, Sept. 16, 1987, S.Treaty Doc. No. 100-10 (1987), 1522 U.N.T.S. 3.

[3] See id.

[4] See Edward A. Parson, Protecting the Ozone Layer 252–53 (2003). See id. at 126–27, 176–77, 180–82

[5] An illuminating discussion of that difference can be found in Scott Barrett, Montreal versus Kyoto: International Cooperation and the Global Environment, in Global Public Goods: International Cooperation in the 21st Century 192

[6] George Pring, The United States Perspective, in Kyoto: From Principles to Practice 185, 195–97 (Peter Cameron & Donald Zillman eds., 2001)

[7] ibid

[8] Tony Blair, Foreword to Avoiding Dangerous Climate Change, at vii (Hans Joachim Schellnhuber et al. eds., 2006).

[9] Ibid

[10] An illuminating discussion of that difference can be found in Scott Barrett, Montreal versus Kyoto: International Cooperation and the Global Environment, in Global Public Goods: International Cooperation in the 21st Century 192, at 368- 69

[11] U.N. Framework Convention on Climate Change, May 9, 1992, 1771 U.N.T.S. 107, available at http://unfccc.int/essential_background/convention/background/items/1349.php

[12] See id note 12

[13] See id art4 para 2

[14] Supra note 12 at 368

[15] id

[16] S. Res. 98, 105th Cong. (1997).

[17] id

[18] George Pring, The United States Perspective, in Kyoto: From Principles to Practice 185, 195–97 (Peter Cameron & Donald Zillman eds., 2001).

[19] id

[20] See Robert V. Percival et al., Environmental Regulation 1047 (4th ed. 2003) at 1063

[21] Kyoto Protocol to the United Nations Framework Convention on Climate Change art. 3, Dec. 10 1997, 37 I.L.M. 22, available at http://unfccc.int/essential_background/kyoto_ protocol/items/1678.php

[22] Richard Benedick, Morals and Myths: A Commentary on Global Climate Policy, 109 WZB-Mitteilungen 15 (Sept. 2005)

[23] Id 15-16

[24] Supra note 21 at 206

[25] Id at 206

[26] Id at 206

[27] Supra note 25 at 16

[28] Letter from George W. Bush, U.S. President, to Senators Hagel, Helms, Craig, and Roberts (Mar. 13, 2001), available at http://www.whitehouse.gov/news/releases/2001/03/2001 0314.html (last visited Oct. 18, 2006), Harvard Environmental Law Review).

[29] Supra note23 at 1071

[30] Supra note 21 at 194

[31] Id at 196

[32] WEFA, Inc., Global Warming: The High Cost of the Kyoto Protocol (1998), available at http://www.heartland.org/pdf/11399.pdf.

Copyright Protection for Computer Software in India

noreply@blogger.com (bizandlegis) — Thu, 3 Mar 2011 03:39:00 -0800

Introduction

Copyright was usually associated with artistic products, but today in addition to all this copyright is now an important tool in protecting computer software. The Copyright Act provides copyright protection for original works of authorship fixed in any concrete medium of expression. The Act gives the copyright owner exclusive rights over the reproduction, preparation of derivative works, distribution. It is not a necessity to take steps after the work has been created and "fixed in tangible form" for copyright to exist. But a registration of copyright in a work is necessary to proceed with an action for infringement of it.

Indian Law

In India, computer software does not form the subject matter of patents as it does not fulfill the requirements for a patentable product. India has adopted most of the international instruments like TRIPS, Berne Convention, WIPO Copyright treaty etc and has also incorporated law on software protection. The major statutes that cover software protection in India are the Copyrights Act, 1957 (“Act”) and Patents Act, 1970.

Copyrights Act, 1957

The Copyright Act of 1957 is the law governing copyrights in India. The Act was amended in 1999 so as to make the Act compatible with the provisions of TRIPS. The Act defines computer and computer programs. “Computer Program” means a set of instructions expressed in words, codes, schemes or in any other form, including a machine readable medium, capable of causing a computer to perform a particular task or achieve a particular result[1]. “Literary work” is defined as that which includes computer programs, tables and compilations including computer databases[2]. Copyright, in relation to a computer program means the exclusive right to do or authorize to do any of the following acts[3] :

(1) To reproduce the work in any material form including the storing of it in any medium by electronic means;

(2) To issue copies of the work to the public not being copies already in circulation;

(3) To perform the work in public, or communicate it to the public;

(4) To make any cinematographic film or sound recording in respect of the work;

(5) To make any translation of the work;

(6) To make any adaptation of the work;

(7) To do, in relation to a translation or an adaptation of the work any of the acts specified in relation to the work in the above;

(8) To sell or give on commercial rental or offer for sale or for commercial rental any copy of the computer program. Commercial renting does not apply to computer programs where the program itself is not the essential object of the rental.

To do any of the above acts related to the computer program or to use it, a license is required from its owner. Any person who knowingly makes use of an infringing copy of a computer program is liable to be punished with imprisonment for a term of at least seven days and can be extended to three years and with fine of at least Rs. 50,000[4] .

The term of copyright in published literary work published within the lifetime of the author is 60 years from the beginning of the calendar year following the year in which the author dies. In case of anonymous or pseudonymous works, the duration is 60 years from the calendar year following the year in which the work is first published[5]. Thus, the minimum term of 25 years stipulated in the Berne Convention is not applicable in India.

Protection

The basis of protection as literary work is that the work must not be copied from another work, but must be the original work of the author. Author, with regard to computer software, is the person who causes the work to be created. Copyright subsists in a computer program provided sufficient effort or skill has been spent to give it a new and original character. But, a computer program, which does no more than produce the multiplication tables, or the alphabet, cannot lay claim to copyright protection. It is because the amount of skill needed for such an exercise is too insignificant.

Other than the condition of “originality,” a computer program also has to conform to the requirement of first publication as stated in the Act. The work must be first published in India and if it is published outside India, then the author should be a citizen of India at the time of publication. As regards unpublished work, the author should be a citizen of India or domiciled in India at the date of making of the work. The government of India passed the International Copyright Order, 1958 whereby any work first published in any country which is a member of the Berne Convention or the UCC (Universal Copyright Convention) will be accorded the same treatment as if it was first published in India. The registration of copyright is not compulsory in India but registration offers better protection to the author in cases of infringement of copyright.

Acts not amounting to Infringement

In compliance with the provisions of the TRIPS, the Act[6] has clarified that the following acts do not constitute infringement of copyright in software:

(a) Making copies or adaptation of a computer program by a lawful possessor of a copy of such computer program from such copy in order to utilize the program for the purpose for which it was supplied or to make back-up copies purely as a temporary protection against loss, destruction or damage in order only to utilize the computer program for the purpose for which it was supplied.

(b) Doing any act necessary to obtain information essential for operating inter-operability of an independently created computer program with other programs by a lawful possessor of a computer program provided that such information is not otherwise readily available.

(c) Observation, study or test of functioning of the computer program in order to determine the ideas and principles which underline any elements of the program while performing such acts necessary for which the computer program was supplied.

(d) Making copies or adaptation of the computer program from a personally legally obtained copy for non-commercial personal use.

Patents Act, 1970

The Patents Act, 1970 states that a computer program per se other than its technical application to industry or a combination with hardware is not patentable[7] . Thus, software can be registered as a patent only if it is in combination with hardware and not otherwise.

Conclusion

The duplicated and pirated software affects all software users. There is a need for stronger legal protection. The primary protection for computer software in India is found in the Copyrights Act, 1957. There are very few cases pertaining to protection of software in India, most of them with Microsoft Corporation as the aggrieved party. In one of these cases[8] , the Delhi High Court awarded punitive and exemplary damages against the wrongdoer who were involved in piracy activities by hard-disk loading. With the growth of importance of software in every business, more and more companies want protection under the legal regime to eliminate and stop software piracy.

Get a Copyright protection or Copyright Registration Service

[1] Section 2(ffc)

[2] Section 2(o).

[3] Section 14 (b) of the Act

[4] Section 63B of the Act

[5] http://copyright.gov.in/Documents/CopyrightRules1957.pdf

[6] Sections 52(1)(aa), 52(1)(ab), 52(1)(ac) and 52(1)(ad)

[7] Section 3 (k) of the Patents Act, 1970.

[8] Microsoft Corporation vs. Ms. K. Mayuri and Ors. 2007 (35) PTC 415 (Del)