Forum Posts

tathyalawacademy
Apr 22, 2021
In Miscellaneous
Date: 22 April, 2021 by Shwas Bajaj, UILS, Panjab University INTRODUCTION The doctrine of lis pendens is expressed in the well-known maxim: pendente lite nihil innovature, which means ‘during pendency of litigation, nothing new should be introduced’. Under this doctrine, the principle is that during pendency of any suit regarding title of a property, any new interest in respect of that property should not be created. Creation of new title or interest is known as a transfer of property. Therefore, in essence, the doctrine of lis pendens prohibits the transfer of property pending litigation. In Rajendra Singh v. Santa Singh, AIR 1973 SC 2537, the Supreme Court said that the doctrine of lis pendens is intended to strike at attempts by parties to a suit to curtail the jurisdiction of the court by private dealings which may remove the subject matter of litigation from the power of the Court to decide a pending dispute and frustrate its decree. SECTION 52 OF TRANSFER OF PROPERTY ACT, 1882 The law incorporated in Section 52 is based on the doctrine of lis pendens. Following conditions are necessary for the application of the Section 52: Pendency of Suit or Proceeding:- The section applies only where a property is transferred during pendency of litigation. Pendency of suit is that period during which the case remains before a Court of Law for its final disposal. A pendency of a suit begins from the date on which the plaint is presented and terminates on the date on which the final decree is passed. Pendency in Court of Competent Jurisdiction:- The suit or proceeding during which the property is transferred, must be pending before a Court of competent jurisdiction. Where a suit is pending before a Court which has no proper jurisdiction to entertain it, the lis pendens cannot apply. Right to Immovable Property must be Involved:- Another condition for the applicability of this section is that in the pending suit, right to immovable property must directly and specifically be in question. The litigation should be regarding title or interest in an immoveable property. Suit must not be Collusive:- Lis Pendens is inapplicable if the suit is collusive in nature. A suit is collusive if it is instituted with a mala fide intention. Mala fide intention behind instituting a suit is inferred from the fact that parties to the suit know their respective rights in the property and there is no actual dispute. Such a suit is, therefore, fictitious and the very purpose of filing the suit is to get a judicial decision of some evil design, e.g., defrauding a third party. Property is Transferred or Otherwise Dealt With:- During pendency of suit, the property must be transferred or otherwise dealt with by any of the parties to the suit. Transfer Affects Rights of any Other Party:- The last condition for applicability of Section 52 is that the transfer during pendency must affect the rights of any other party to the suit. The principle of lis pendens is intended to safeguard the parties to litigation against transfers by their opponents. So, the words ‘any other party’ here does not mean stranger to suit. It means any other party between whom and the party who transfers, there is an issue for decision which might be prejudiced by alienation. CONCLUSION When the conditions necessary for the applicability of the section are fulfilled the result is that the transferee is bound by the decision of the Court. For example, in a suit between A and B respecting title of a house if B transfers the house to C during pendency and the judgment is subsequently in favour of B, C would be entitled to the house. But if the decree is passed against B, then it is binding not only on B but also on C with the result that C cannot get the house. Under this section C cannot take the plea that he had no notice of pending litigation.
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tathyalawacademy
Apr 13, 2021
In Miscellaneous
Date: 13 April, 2021 by Dikshita Singla, UILS, Panjab University MEANING Lease means when a person rents his property to another through a means of contract in return for a payment for a certain period. e.g. A leases his house to B for 6 months for periodic payment of Rs. 12000 per month. The term “lease” is defined under Section 105 of The Transfer of Property Act, 1882 - “A lease of immovable property is a transfer of a right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered periodically or on specific occasions to the transferor by the transferee, who accepts the transfer on such terms”. ESSENTIALS OF A VALID LEASE Competent Parties- To constitute a valid lease both the lessor and the lessee must be competent parties. For both the parties to be competent they must be: The lessee must have attained the age of eighteen years. The lessor must have the rightful authority to make the lease. Both the parties must be of sane mind to constitute a valid lease agreement. Subject matter involved- The subject matter to be leased must be an immovable property like a flat, house or commercial space. Movable property cannot be leased. Consideration- There must be some kind of consideration involved in the contract. Without a valid consideration, it would be considered as an invalid lease. The consideration is generally in the form of premium plus rent but sometimes it can be varied by the discretion of both parties. Period- A lease for an immovable property shall be made for 11 months. In case the duration exceeds 12 months or more then a lease agreement can only be made by a registered instrument as per Section 107 of the Transfer of Property Act, 1882. Acceptance of the contract- To constitute a valid contract, both parties must accept the contract without any form of undue influence, coercion. Once the lessee accepts the contract, the lease becomes valid. RIGHTS OF A LESSOR Right to accretions- In case any addition is made in the property during the tenure of the contract then the lessor is entitled to any such addition in the property. Right to collect rent- The lessor is entitled to collect rent or any form of consideration as stated while the formation of the contract. RIGHTS OF A LESSEE To charge for repair- If the lessor refuses to make any repairs in the property which he is bound to do in that case the lessee can make such repairs by his personal expenses. To compensate for the expenses, the lessee can charge the same from the lessor. Right to remove fixtures- The lessee can remove any fixture in the property during the existence of the lease, but after the expiry of the lease deed the lessee must leave the property in the same condition as he received it. Right to assign his interest- The lessee has the authority to sub-lease the property to a third party or the lessee can completely transfer his interests. Lessor must disclose all the relevant facts and try to avoid interruptions while the lessee is leased the property. A lessee is supposed to take reasonable care of the property and at the timely payment of the rent to the lessor. SOURCES: https://blog.ipleaders.in/45943-2/ https://www.legalbites.in/lease-introduction-concept/
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tathyalawacademy
Apr 12, 2021
In Criminal Law
Date: 12 April, 2021 by Nishtha Girdhar, UILS, Panjab University In Corpus Juris Secundum, the term “abet” has been defined as “to aid, to assist or to give aid; to command, to procure, or to counsel; to countenance; to encourage, counsel, induce, or assist, to encourage or to set another on to commit.” The term “abetment” in criminal law thus indicates that there is a distinction between the person abetting the commission of an offence (or abettor) and the perpetrator of the offence or the principal offender. ABETMENT UNDER THE IPC Under the IPC, 1860, abetment is constituted by: Instigating a person to commit an offence; or Engaging in a conspiracy to commit it; or Intentionally aiding a person to commit it. The essence of abetment is the active and intentional assistance of a person to the perpetrator of an offence. It is imperative to note that the offence of abetment by instigation relies on the intention of the individual who abets and not upon the act which is finished by the individual who has abetted. 1.ABETMENT OF A THING: SECTION 107 Abetment by Instigation: The word “instigate” literally means to provoke or bring about by persuasion to do anything. The act of instigating a person could take any form. There must be a proximate causal connection between instigation and the act committed as a result. Abetment by Criminal Conspiracy: Commission of abetment by engaging with one or more persons in a conspiracy to commit an offence constitutes the offence of abetment by conspiracy. Abetment by Intentional Aiding: Intentional aid consists of any of the following three components: Doing an act directly assisting the commission of the crime, or Illegally omitting to do a thing which one is bound to do, or Doing an act that may facilitate the commission of the crime by another. CASE LAW: Shri Ram v State of Uttar Pradesh, AIR 1975 SC 175 It was held that mere knowledge on part of a person that his act would facilitate the commission of an offence does not make him an abettor. 2. ABETTOR: SECTION 108 The section lays down the definition of an abettor as being a person who abets: The commission of an offence Commission of an act which if committed by such a person would be an offence 3. PUNISHMENT FOR ABETTMENT: SECTIONS 109-114 Section 109: This section is applicable in case no separate provision is made for the punishment of such an abetment. In such a case, it is punishable with the imprisonment prescribed for the main offence. Section 110: Section 110 comes into play when the act has been committed with an intention different from the intention of the abettor abetting the commission of such act. The liability of the individual abetted isn’t influenced by this section. Section 111: This section enunciates the principle of constructive liability. When an act is abetted, and a different act is done, the abettor is liable for the act done, in the same manner, and to the same extent as if he had directly abetted it. Section 112: According to this section if the act abetted is done along with another act which is the probable consequence of abetment, then the abettor is liable to be punished for each of the offences. Section 113: This section deals with the case where the act done are the same as the act abetted, but with a different effect. Section 114: A charge under Section 114 will lie when the abettor is present during the commission of the offence which he has abetted to take place. 4. QUANTUM OF PUNISHMENT WHERE OFFENCE IS PUNISHABLE WITH LIFE IMPRISONMENT OR DEATH: SECTIONS 115 -116 Section 115: In cases where no offence has been committed in consequence of the abetment, the punishment so prescribed is imprisonment of up to 7 years and a fine. Where offence has been committed in consequence of the abetment, the abettor is liable to be punished with a term of up to 14 years and a fine. Section 116: Section 116 provides for the punishment of abetment for the offence which is punishable with imprisonment for life. 5. PUNISHMENT FOR CONCEALING DESIGN TO COMMIT OFFENCES: SECTIONS 118-120 Sections 118-120 deals with a special form of abetment by way of concealing of design to commit crimes. They deal with concealment before the commission of the crime. CONCLUSION Thus, as a substantive offence, abetment seeks to make not only the perpetrator but also the accomplice or abettor liable for the commission of an offence which stands in consonance with principles of natural justice.
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tathyalawacademy
Feb 10, 2021
In Miscellaneous
Date: 10th February, 2021 by Ambica Sharma, VIPS, Dwarka INTRODUCTION A seller is under an obligation to deliver the goods sold and the buyer is under an obligation to pay the requisite amount or quid pro quo under the contract of sale. This is a reciprocal promise defined as under Section 2(f) of the Indian Contract Act, 1872. When a buyer refuses or fails to pay the requisite amount to the seller, the unpaid seller has certain rights. These remedies can be against: Buyer Goods According to Section 45(1) of Sale of Goods Act, 1930, the seller is considered as an unpaid seller when: When the whole price has not been paid and the seller has an immediate right of action for the price. When Bills of Exchange or other negotiable instrument has been received as conditional payment, and the pre-requisite condition has not been fulfilled by reason of the dishonour of the instrument or otherwise. For instance, X sold some goods to Y for $50 and received a cheque. When it was presented for payment, it was dishonoured. X is an unpaid seller. Seller also includes a person who is in a position of a seller i.e. agent, who had himself paid or is responsible for the price. RIGHTS AGAINST BUYER Suit for the price When the buyer has wrongfully neglected or refused to pay as per the terms and conditions of the contract, the seller may sue him as per the Section 55(1) because once the property has been passed the buyer is bound to pay the price. Suit for damages In case there is a wrongful refusal on the part of the buyer for acceptance of goods and payment of money, the seller can sue him for damages of non-acceptance as per Section 56. In the case of M. Lachia Shetty V. Coffee Board (AIR 1981 SC 162), a dealer who bid at an auction of coffee, the offer was accepted, but he refused to carry out the contract, consequently, coffee was re-auctioned at next best bidding price and the dealer who refused to perform the contract had to pay the difference as loss to the board. Suit for interest As stated under Section 61, where there is a specific agreement between buyer and seller with regards to interest on the price of goods from the date on which payment becomes due, the seller may recover interest from a buyer. But if no such agreement then, the seller may charge interest from the day he notifies the buyer. Repudiation of the contract before the due date According to Section 60, the rule of anticipatory breach of contract applies, wherein, if buyer renounces the contract before the date of delivery, the seller can consider the contract as withdrawn and can sue for damages of the breach. RIGHTS AGAINST GOODS Lien Lien is a right which seller can exercise if the buyer fails to pay the price of goods, under this right seller can retain the possession of goods as an agent or bailee for the buyer. The seller can retain his possession as per Section 47 under the following circumstances: In case the buyer is insolvent. When the term of goods sold on credit is expired. Goods sold without any stipulation as to credit. Stoppage When the goods have been transferred to carrier or bailee for the purpose of transmission to the buyer, who has become insolvent, the seller has the right to stop the goods in transit in order to protect himself against any loss that may arise due to insolvency. Under Section 50, there are four requirements for stopping the goods in transit: Unpaid seller. Buyer insolvent. Property should have passed to the buyer. Property should be in the course of transit. Resale Exercising the right of lien or stoppage does not withdraw the agreement but reselling of goods does. The unpaid seller can exercise this right under following conditions and circumstances- 1- Seller before reselling the goods needs to send a notice to the buyer. 2- If there is any loss in the resale of goods he can claim the loss from the buyer. 3- Seller gives fair ownership to the buyer after the resale. It does not matter if a notice of resale is given or not to the defaulted buyer. 4- Sometimes the seller reserves exclusive right to resale the goods if the buyer makes a default in payment, in such cases the buyer cannot ask for profit on resale. For instance, R V Ward V. Bignall ([1967] 1 QB 534), there was a contract of sale of two cars, vanguard and zodiac for 850$. The buyer deposited 25$ but afterwards did not pay the price despite a reasonable notice. The seller then tried to resell but could only find a vanguard for 359$. He then claimed damages for 475$ representing the balance of price and 22$ as advertising expenses. Court held that once the seller resells the goods the contract is annulled and he cannot claim the money but he can ask for advertising expenses and a shortfall in the price of the vanguard.
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tathyalawacademy
Feb 09, 2021
In Civil Law
Date: 9th February, 2021 by Upamanyu Ganguly, ILS Law College, Pune INTRODUCTION A pleading under the Code of Civil Procedure (CPC), 1908, is a written statement or a plaint that contains the material facts in regards to the case at hand for the claim or defence in the case, in a clear and concise manner. The pleading is supposed to contain only the facts of the case and not evidence in relation to the claim or defence, and no law that works in his favour. AMENDMENT OF PLEADINGS Under Order VI, Rule 17 of the CPC deals with Amendment of Pleadings, where it essentially states that the Court can allow a party to amend the pleading at any stage of the trial in case the Court believes that such an amendment will help in determining the issue. Amendments are generally made in order to bring about full closure regarding the case at hand to avoid multiplicity of trials. Amendments also become necessary in case of any new developments during the trial, such as any change of circumstance during the course of the trial. Rule 18 deals with the failure of a party to amend the pleading. If a party is allowed to amend his pleading, then the amendment has to be done within the time stipulated by the Court, or if there is no time limit specified, then within fourteen days after being granted the order for leave, unless the Court extends this time period. In case a party does not amend the pleading within the time, the party may not be permitted to do so after the expiration of the time limitation. GUIDELINES REGARDING THE AMENDMENT OF A PLEADING The cause of action of a suit cannot be substituted by an amendment as it is the basis for the suit to proceed in the first place, however, in cases where the cause of action has been has been aggravated due to further violations, then in such cases the Court has the discretion to allow the amendment of the cause of action in a suit. If there is a prospective change of substantive law, then the Court does not need to allow any amendments for the cause of action as it does not affect it, however, in changes where there is a retrospective change, then in such cases the court may grant an order of leave for the amendment of the cause of action as it may affect the cause of action. In cases where there is a change in procedural law, the Court does not need to allow any amendments (Omprakash Gupta V. Ranbir B. Goyal (AIR 2002 SC 2511)) In the case of Salem Bar Association V. Union of India (AIR 2005 SC 3353), the Supreme Court decided that the burden of proof shifts to the applicant who applies to amend his pleading after the trial has commenced to prove that the issue could not have been raised before even with due diligence. During the hearing to grant an application for amendment of pleadings, the Court does not go into the merits of the suit.
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tathyalawacademy
Feb 08, 2021
In Miscellaneous
Date: 8th February, 2021 by Divya Menon, UILS, Panjab University Actionable claim is defined in Section 3 of the Transfer of Property Act, which was included in the Act by the Amending Act II of 1990.“actionable claim” means a claim to any debt, other than a debt secured by mortgage of immovable property or by hypothecation or pledge of moveable property, or to any beneficial interest in moveable property not in the possession, either actual or constructive, of the claimant, which the Civil Courts recognize as affording grounds for relief, whether such debt or beneficial interest be existent, accruing, conditional or contingent. Broadly, an actionable claim means 1. unsecured debt and; 2. a claim to beneficial interest in movable property not in possession of the claimant. Tangible movables such as tables or cars have physical existence and can be possessed but intangible movables in the form of right have no physical existence and cannot be possessed. The existence of tangible-movable can be known simply by physical presence. But the existence of intangible movable property may be known only when the person having such interest claims it by maintaining an action in the court of law. For example, A has a claim or right to get back the money given by him to B, then A’s claim can be known only when he files suit against B for the recovery of his money. In other words, A’s claim against B can be known only when he maintains action in Court of law. UNSECURED MONDEY DEBT: A debt may be secured or unsecured; when there is no security of any movable or immovable property, the debt is unsecured. When a person takes out a loan and simply writes a pronote, the debt is an unsecured debt. According to Section 3, only unsecured debt is an actionable claim. Debt secured by way of mortgage, pledge or hypothecation is not an actionable claim. It should be noted that debt not only means a loan, it can be any obligation to pay a certain or definite sum of money. For example, claims of ‘arrears of rent’ is an actionable claim. Debt may be existent, accruing or conditional. CLAIM TO BENEFICIAL INTEREST NOT IN POSSESSION OF THE CLAIMANT: Right of a person to take the possession of immovable property from the possession of another, is the actionable claim of that person provided that the claimant has beneficial interest (i.e., right of possession) in that property. The requirements necessary for constituting an actionable claim are- The claim is to some movable property. The movable property is in possession of another person. The beneficial interest or the right of the possession of the claimant is recognized by the Court. Illustration: A has sold 50 bags of wheat to B. The bags of wheat are in the godown of A. B’s right to take possession of the bags of wheat from the godown of A is his (B’s) actionable claim. CAN ACTIONABLE CLAIMS BE TRANSFERRED? Actionable claim is an intangible movable property and it can be transferred. Transfer is dealt in the Chapter VIII of the Act.
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tathyalawacademy
Feb 07, 2021
In Civil Law
Date: 7th February, 2021 by Sakshi Verma, UILS, Panjab University The word ‘Caveat’ is originally a Latin word which means ‘let the person beware’. In Indian law, there are provisions relating to ‘Caveat’ under Section 148A of the Civil Procedure Code,1908. SECTION 148A OF THE CIVIL PROCEDURE CODE, 1908 Section 148A was incorporated by the recommendations of the Law Commission of India's 54th Report and was inserted by the CPC (Amendment) Act 104 of 1976. Section 148A defines caveat petition as a precautionary measure taken by a person who holds a strong fear or uneasiness that some or the other case against him/her is going to be filed in the court of law regarding any manner. WHEN IS CAVEAT FILED? A Caveat should be filed in the higher Court as early as possible from the date of Pronouncement of Judgment of the lower court, so that the Court gives the Caveator a fair hearing before deciding any matter brought before it in the relevant case. As per Clause 5, the life of a caveat petition is 90 days from the date of lodging the petition. DUTIES OF A CAVEATOR 1.Clause 2 states the duties of a caveator. A caveator is a person who has lodged the caveat. Caveator needs to serve the notice of caveat by an acknowledgement due and registered post either on the person who has made the application or is expected to make an application. 2.Clause 3 states the duty of the court in case of caveat petition. Once a caveator lodges a caveat under clause 1, wherein any application is filed in a proceeding or suit then the court will serve a notice of the application on the caveator. DUTIES OF THE APPLICANT/PERSON FILING THE CAVEAT Clause 4 states the duties of the applicant. Once the notice of any Caveat has been served on the applicant then he/she needs to mandatorily present the following documents on Caveator’s expense: Application copy made by applicant, Copy/copies of document or any paper filed by the applicant supporting his/her application, Copy/copies of document or any paper which may be filed by the applicant supporting his/her application. For instance, on November 3,2020 The Future group filed caveat petition in the Delhi High Court against Amazon, anticipating that the company could approach the high court over the Future group-Reliance deal. The caveat petition, filed on Monday, prayed that no order should be passed in any plea or petition against Future group without due notice to it and hearing it in the matter.
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tathyalawacademy
Feb 02, 2021
In Miscellaneous
Date: 2nd February, 2021 by Rutuja Raghushe INTRODUCTION ’Doctrine of Fair use’ is a defence against the claim of infringement by the owner. According to Section 30(1) of the Trademarks Act,1999, the use of a registered trademark is allowed to identify the character or repute of the trademark. Many courts around the world have acknowledged the doctrine of nominative fair use, and even the Indian courts have acknowledged and the doctrine is covered under Trademarks Act,1999 as an exception in the cases of infringement of trademarks. In Consim Info Pvt. Ltd., represented by its Director and Chief Executive Officer Mr. Janakiraman Murugavel Vs. Google India Pvt. Ltd. and Ors (2010(6) CTC813) acknowledged nominative fair use as defense in the infringement cases. ORIGIN OF DOCTRINE The doctrine of nominative use was first established in the case of New Kids on the Block v. News America Publishing, Inc 971 F.2d 302 (9th Cir. 1992) by the U.S. Court of Appeals for the Ninth Circuit. In this case, the defendant has used the name of a famous singer for a survey. The singer has filed a suit of infringement against the newspaper. The court had observed a "New Kids on the Block survey" performed by the defendant and established that by no means a way to ask people their opinion of the band without using its name. Indian Scenario- According to Section 30(2)(d) of the Trade Marks Act,1999,” the use of a trademark by a person concerning goods adapted to form part of, or to be accessory to, other goods or services concerning which the trademark has been used without infringement of the right given by registration under this Act might for the time being be so used if the use of the trademark is reasonably necessary to indicate that the goods or services are so adapted, and neither the purpose nor the effect of the use of the trademark is to indicate, otherwise than following the fact, a connection in the course of trade between any person and the goods or services, as the case may be;" Fair use under trademark can be broadly divided into two categories- Descriptive Fair Use- is related to the use of a registered trademark in a descriptive manner, like used for goods and services signifying the quality, quantity, value, or other characteristics of the goods or services. This is covered under S.30(2)(a) of the Act; Nominative Fair Use- is used in relation goods adapted to form a part of or to accessories, provided that the use is ‘reasonably necessary’  to imply that the goods so adapted have a compatibility with the goods sold under the trademark. This is covered under S.30(2)(d) of the Act. for example parodies, news, etc. The Madras High Court in the case of  Consim Info Pvt. Ltd vs Google India Pvt. Ltd(2010) 6 CTC 813 significantly relied upon the two U.S. Ninth Circuit judgments, to illustrate the meaning of ‘reasonably necessary’ given in S.30(2)(d) and held that for unauthorized use of a registered trademark to be regarded as ‘Nominative Fair Use’ it must pass three steps: (i) the product or service in question must be one not readily identifiable without use of the trademark; (ii) only so much of the mark or marks may be used as is reasonably necessary to identify the product or service; and (iii) the user must not do anything that would, in conjunction with the mark, suggest sponsorship or endorsement by the proprietor of the trademark.
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tathyalawacademy
Jan 28, 2021
In Miscellaneous
Date: 28th January, 2021 by Nishtha Girdhar, UILS, Panjab University Amazon Prime Video’s Tandav, one of the most anticipated web series this year, has found itself in the midst of controversy and trolling since its release on January 15. The show has been accused of hurting religious sentiments, particularly a scene featuring actor Zeeshan Ayyub, which shows him dressed as Lord Shiva and mouthing lines about the word “azaadi”. Following numerous complaints, the makers of the show issued an unconditional apology and offered to delete “problematic” sequences from the show. SEQUENCE OF EVENTS Filing of First FIR The first FIR against the actors, producers and director of Tandav was filed by BJP MLA Ram Kadam. This complaint was lodged at the Ghatkopar police station in Mumbai. Following this, an FIR was registered against the director, producer and the writer of web series, along with Amazon Prime Video’s India head of original content at the Hazratganj police station of Lucknow for allegedly portraying Hindu Gods in bad light. The makers were also accused of provoking communal tension via its dialogues. Multiple charges, including those related to promoting enmity among groups, defiling places of worship, forgery and triggering public mischief were mentioned in the FIR. Second Criminal Complaint Another criminal complaint was filed by a Bihar-based lawyer against 96 people associated with web series, who alleged the show “spreads-caste based discrimination” Issue of Summons by I&B Ministry The Amazon team was called upon by the I&B Ministry headed by Prakash Javadekar to explain themselves even as the makers continued to face severe trolling. The makers of the show thanked the Information and Broadcasting Ministry for its “guidance and support” in the matter. Grant of Anticipatory Bail Last week Bombay High Court had granted transit anticipatory bail to Tandav web series director Ali Abbas Zafar, producer Himanshu Mehra, Amazon content head Aparna Purohit and writer Gaurav Solanki enabling them to seek regular pre-arrest bail from Uttar Pradesh. The three-week anticipatory transit bail was granted by Justice PD Naik. Supreme Court The Supreme Court on Wednesday issued notices on a plea filed by the Director, Producer, Writer and Actor of the web series seeking for clubbing and transferring of criminal proceedings which have been initiated against them in various cities for allegedly hurting religious sentiments. A Bench comprising of Justices Ashok Bhushan, R. Subhash Reddy and MR Shah refused to grant any interim protection to the accused persons apprehending arrest from Police departments of six states. On Wednesday, the Supreme Court declined them interim protection. They have been asked to take up the issue in related high courts where complaints have been filed against them. "We cannot use the power under Section 482 CrPC. We are not inclined to grant interim protection," the Bench said. The bench also said that it was rejecting the prayer for quashing of the FIRs. Justice Ashok Bhushan also remarked during the hearing that freedom of speech was not absolute. SOURCES: https://indianexpress.com/article/entertainment/web-series/controversies-surrounding-tandav-heres-everything-you-should-know-7163727/ https://scroll.in/latest/984522/tandav-makers-agree-to-make-changes-to-web-series-after-controversy
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tathyalawacademy
Jan 26, 2021
In Miscellaneous
Date: 25th January, 2021 by Divya Menon, UILS, Panjab University After hearing petitions over the constitutional validity of the laws and some demanding the protestors be removed from the borders of Delhi, a 3-judge Bench led by CJI passed an 11-page order which did not address any of these bigger questions. The Court on 12th January, 2021 stayed the implementation of the three farm laws. The stay means that for the time being, Centre cannot proceed with any executive action to enforce the laws. The stay as the Court said, “may assuage the hurt feelings of the farmers”. The Court formed a 4-member committee of experts “to listen to the grievances of farmers and views of the Government and make recommendations”. In the order the Court hoped that the stay would be perceived as “extraordinary achievement at least for the present” and added that the MSP system in existence before the enactment of the laws should be maintained till further orders. THE COMMITTEE The committee that consisted of Bhupinder Singh Mann, National President, Bhartiya Kisan Union (who has recused himself), now consists of Dr. Parmod Kumar Joshi, agricultural economist, Director for south Asia International Food Policy Research Institute; Ashok Gulati, agricultural economist and former Chairman of the Commission for Agricultural Costs and Prices; and Anil Ghanwat, President, Shetkari Sanghatana. As per the order, the committee has to start working in 10 days and submit a report to the Court in 2 months. The Government is to take care of the expenses. The farmer unions the very next day rejected the SC panel, pointing out that the members of the committee had actively advocated for the laws. ANALYSIS OF THE ORDER THROUGH LEGAL LENS The order put an interim stay on the enforcement of the Acts and appointed a 4-member committee to resolve issues between farmers and the Union government. This order has been criticised and questioned in the legal domain, particularly the interim order. Why is it unusual for a court to suspend a law? The main reason is that when a court suspends a law made by the legislature, it goes against the principle of separation of powers. The second reason is that unless the contrary is proved, the presumption is that the law is valid and constitutional. The onus is on those who challenge its validity, to prove that it is not. This was also the argument put forth by the AG Mr. K.K Venugopal but the Court did not accept the same. Court’s powers in regard to putting a stay on enacted laws Under the constitution, the Supreme Court and High Courts have the power of judicial review, owing to which they can declare any law unconstitutional, either because it is ultra vires or because it violates any of the fundamental rights or is contrary to a central law on the same subject or has been brought in without legislative jurisdiction. However, interim orders staying or suspending laws are extremely rare and such action must not be taken unless there are reasons that show utter lack of constitutional validity or absence of legislative competence. Precedents against judicial interference The Supreme Court in Bhavesh D. Parish & others vs Union of India,2000 said, “when considering an application for staying the operation of a piece of legislation, and that too pertaining to economic reform or a change, then the courts must bear in mind that unless the provision is manifestly unjust or glaringly unconstitutional, the courts must show judicial restraint in staying the applicability of the same.” In the gist of elements, the order neither pleases the farmers nor the legal scholars, even though the CJI supported it as the best way forward at present. REFERENCES: https://www.cnbctv18.com/legal/supreme-court-live-updates-farmers-protest-latest-updates-new-farm-laws-7959751.htm https://www.thehindu.com/news/national/the-hindu-explains-can-courts-stay-laws-made-by-the-legislature/article33589264.ece#:~:text=In%20particular%2C%20many%20have%20questioned,in%20favour%20of%20the%20laws. https://www.thehindu.com/news/national/sc-farmers-protest-farm-laws/article33548219.ece
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tathyalawacademy
Jan 25, 2021
In Miscellaneous
Date: 24th January, 2021 by Rutuja Raghushe INTRODUCTION The Essential Commodities (Amendment) Ordinance, 2020 an amendment to Essential Commodities Act,1955 was promulgated on 5 June 2020.This act empowered the Central government to control the production, distribution, supply, trade, and commerce in certain commodities which include major commodities like essential pharmaceutical drugs, fertilizers, potato, onion, raw jute, petroleum and petroleum products, etc. The Ordinance aims to boost competition in the agricultural sector and improve farmers income. It aims to control the production, supply, distribution, and trade and commerce, in certain commodities through government intervention. Such commodities are declared as essential and State Government/Union territories enforce provisions of Act to control prices of such essential commodities. It ensures that interests of consumers are safeguarded by regulating agricultural foodstuff in situations such as war, famine, extraordinary price rise and natural calamity. However, the installed capacity of a value chain participant and the export demand of an exporter will remain exempted from such regulation to ensure that investments in agriculture are not discouraged. BACKGROUND The general idea behind this Act was to (i) make sure that the poor people are able to afford essential commodities (ii) curb hoarding and black marketing of essential commodities. However, the downside of the ‘control part’ is that the goals achieved are exactly the opposite of what was comprehended. Often these control orders used to spike volatility of the wholesale and retail price instead of flattening them. The Act uniformly applied stockholding to the whole agricultural supply chain, which included wholesalers, retail food chain, etc. Therefore, the Act could not separate speculative hoarders from others, the organizations who genuinely had to hoard the stocks due to the nature of their work. Due to the nature of their work the Act dis-incentivized investments in storage and warehousing infrastructure. In absence of such control orders, it is an industry view that traders would store part of the produce to ensure uninterrupted supply of essential commodities at stable prices. The intervention by govt and Act disfigures entry of large corporate players into agricultural marketing. Due to stock limits, growth and development of the commodity market are affected because traders are not able to supply the required quantity of a commodity on exchange platforms. Government raids whose aims were to prevent hoardings of essential commodities have turned out to be ineffective controlling prices of essential commodities. BENEFITS Many private sectors/foreign direct investment would be attracted into the agriculture sector due to the freedom to move, hold, distribute and supply. This will also lead to the harnessing of economies of scale. There will be an increase in investment in cold storages and modernization of the food supply chain. It will prevent waste of agri-foods due to storage facilities. It will help to bring price stability for both farmers and consumers, hence benefitting both. With this amendment, commodities like cereals, onion, potatoes, oilseeds, edible oil will be removed from the list of essential commodities. This will remove fears of private investors of excessive regulatory interference in their business operations ISSUES INVOLVED It will be a highly centralized law and will infringe upon the States’ powers, as they will not be able to regulate let say the menace of hoarding, black marketing etc. As per the Act, the stock relaxations will lead to black marketing and hoarding instead of benefitting the producers. This will pave a path to increase in inflation and monopoly of certain individuals or organizations over the price of the goods. CONCLUSION With the enactment of this Ordinance, Government has approved an amendment to the 65-year old Essential Commodities Act, removing cereals, pulses, oilseeds, edible oils, onion and potatoes from the list of essential commodities. With this, the government has also approved ordinances to remove restrictions on farmers selling their produce outside notified market yards, as well as to facilitate contract farming and allows engagement of farmers in direct marketing, according to an official statement. SOURCES- https://www.mondaq.com/india/commoditiesderivativesstock-exchanges/952674/analysis-of-essential-commodities-amendment-ordinance-2020 https://www.drishtiias.com/daily-updates/daily-news-analysis/essential-commodities-amendment-bill-2020
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tathyalawacademy
Jan 21, 2021
In Miscellaneous
Date: 21st January, 2021 by Shwas Bajaj, UILS, Panjab University INTRODUCTION This Act aims at providing a national framework for the farming agreements that protect and empower farmers to engage with agri-business firms, processors, wholesalers, exporters or large retailers for farm services and sale of future farming produce at a mutually agreed remunerative price framework in a fair and transparent manner. PROVISIONS OF THE ACT This Act seeks to create a legal framework for contract farming in India wherein farmers can enter into a direct agreement with a buyer to sell the produce at predetermined prices. ‘Sponsors’ i.e entities that may partake in an agreement with farmers to buy their agricultural produce may include individuals, companies, firms, and societies. Farming agreements can cover mutually accepting terms between farmers and sponsors including the supply of various resources for farming, method of farming, and the quantity of produce. The Act also provides for a three-tier dispute resolution system: the conciliation board—comprising representatives of parties to the agreement, the sub-divisional magistrate, and appellate authority. THE MAJOR ISSUES The principal concern with contract farming is regarding the negotiating power of the parties involved. Corporates or rich sponsors may not necessarily pay a fair price to the farmers for their produce due to the lack of the farmers’ ability to fairly negotiate or afford any sort of long-standing legal proceeding. This establishes a national legislative framework to enable contract farming, where an agreement can be made between the farmer and the buyer before sowing under which the farmer is contracted to sell her produce to the buyer at a predetermined price. The government has argued that this will help remove some income uncertainty by providing the assurance of a buyer at a predetermined price prior to sowing. The opposition to this stems from the past experiences of contract farming in India, which has not always been beneficial for farmers. It only led to the reinforcement of existing patterns of inequality as the contracting firm had relatively more power than the farmer. In addition, it can lead to many malpractices against farmers including one-sided (pro-contracting agency) contract agreements, delayed payments, quality-based undue rejections and outright cheating, besides poor enforcement of contract farming provisions by the state government. Also, the Act ousts the jurisdiction of civil courts and provides for a complex dispute redressal mechanism which would be difficult to approach for a common poor farmer.
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tathyalawacademy
Jan 21, 2021
In Miscellaneous
Date: 20th January, 2021 by Upamanyu Ganguly, ILS Law College, Pune INTRODUCTION The Farmers’ Produce Trade and Commerce (Promotion and Facilitation) Act, 2020 (‘The Act’) is an act passed by the Government of India with the intention to open up the market and broaden the scope of the farmers’ market, so that the produce can be sold at better prices by creating a competitive marked for farm produce. The act also facilitates inter-state sale of farm produce and to facilitate online sales of farm produce. PROVISIONS OF THE ACT The salient provisions of The Act are as follows- In Chapter two of The Act, Section 3 provides for the freedom of farmers or traders of e-commerce platforms to indulge in any inter-State or intra-State trading. Section 4 makes it a requirement for farmer producers, organisations and co-operative societies to be able to trade only if they have a permanent account number registered under the Income Tax Act, 1961. Section 6 prohibits State Governments from levying taxes on traders, regardless of the provisions of any State APMC Act. Section 14 makes it clear that this Act will be given more authority over any State APMC acts. CONCLUSION The intention of the act itself is not malicious, but certain provisions make it contentious at the least. From a consumer standpoint, as the competition that will be created will also have an impact on prices, opening up to corporations will be advantageous in the domain of access to better quality of material, and inputs. But corporations aren't really known for their benevolence, and it is very likely that there may end up being abuse of labour, but things can be slightly more ideal if corporations coming in the scene are also strictly regulated. Along with the above, the state cannot levy taxes or any form of fees in cases of the new methods of sale, such as e-commerce, inter-State sales and the likes. It is however, quite evident Mandi system may die out, and that has a lot of people working in it, and the middle man will either be completely removed or will switch to corporations and the private sector in general, and along with that, the private sector has enough resources to buy out small farmers' lands to form an amalgamation of small lands to create a larger output which plays in with the profit motive.
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tathyalawacademy
Jan 19, 2021
In Miscellaneous
Date: 19th January, 2021 by Dikshita Singla, UILS, Panjab University Federal copyright law protects original creative works such as paintings, writing, architecture, movies, software, photos, dance, and music. A work must meet certain minimum requirements to qualify for copyright protection. The extent of protection is based upon the fact that when the work was first published. The doctrine of Fair Dealing is an exception to the law that protects any material that must be considered to be protected under the Indian Copyright Act, 1957. It is a legal doctrine where a person is permitted to use any work which is copyrighted under the Act with restricted usage of such work to preserve its originality. Fair use is one of the restrictions to copyright provided to balance the interests of copyright holders with the public interest in the distribution. Use of creative works is also protected under the same by acting as a defence to copyright infringement claims. It limits the uses that might otherwise be considered infringement. Unlike "fair dealing" rights that exist in most countries with British legal history, the fair use right is an exception that applies to various kinds of uses with all kinds of works and turns on a flexible proportionality test. This test is done to inspect the purpose, amount, and impact of copying on the original work. The doctrine of "fair use" came into existence in the Anglo-American common law during the 18th and 19th centuries to prevent copyright law from being too strictly applied. CASE LAWS 1. Civic Chandran vs Ammini Amma (1996) PTR 142- In this case, the Court considered that an imitation did not constitute an infringement of copyright as long as it has not been misused or misappropriated. In this case, the Court introduced the following three tests which need be taken into consideration to determine work to be an infringement of copyright: “the quantum of the matter taken in consideration to the comments or criticism; the purpose for which it is taken; and the possibility of competition between the two works.” 2. India TV Independent News Services Pvt. Ltd. vs Yashraj Films Pvt. Ltd FAO(OS) 583/2011- The defendants, in this case, India TV aired a show on its channel documenting the life of the singers wherein the singers were shown to perform their songs, however during their performance, clips of a movie scene were shown to play in the background. The plaintiff, that is, Yashraj Films Private Limited claimed that such a scene of the movie in the background amounts to infringement of its Copyright. The defendants took the defence of fair dealing under Section 52. The Delhi Court dismissed the defence of fair dealing and restrained the defendants from the production, distribution, and broadcasting or in any way exploiting any cinematograph film, sound recording, or part thereof which is owned by the Plaintiff. It was through the Copyright (Amendment) Act, 2012 that fair dealing was brought within its scope musical recordings and cinematograph films. Through this case, the Indian legal system made progress in the field of fair dealing under Copyright by overlooking the firm approach and implementing the necessary changes. By provisions of Copyright Act, 1957 under Indian Legal system, section 52 provides certain acts or works that cannot be categorized as an infringement of copyright specifically fair dealing with a literary, dramatic, musical or artistic work not being a computer program for the certain purposes. SOURCES: https://blog.ipleaders.in/fair-use-law-india-copyright-act/ https://www.mondaq.com/india/copyright/930556/concept-of-fair-use-and-fair-dealing-in-copyright
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tathyalawacademy
Jan 18, 2021
In Miscellaneous
Date: 18th January, 2021 by Sakshi Verma, UILS, Panjab University Personality rights refer to rights associated with the personality of an individual. This is intricately involved with the right to privacy and property of a person. A person’s persona includes his/her name, photograph, signature, voice or any other mark of identity. These rights are mostly important to celebrities as their names, photographs or even voices can easily be misused in various advertisements by different companies to boost their sales. There is no codified law in India for Personality Rights and the advancement of this law is in the underdeveloped stage and is to a great extent governed by judgements of Courts. The most significant statutory rule regarding Personality Rights is a part of the fundamental right of Right to Life provided under Article 21 of the Constitution of India. Under Intellectual Property Law, Personality Rights are considered as property of well-known public figures which cannot be misused or misappropriated by any-one. Certain provisions are provided under Intellectual Property Rights such as the Copyright Act 1957, where moral rights are ascribed only to authors and performers which comprises actors, performers, dancers, singers, composers etc. As per the provisions of the Copyright Act, 1957, the Authors or the Performers have the right to be given credit or claim authorship of their work and have a negative right restraining others from causing any kind of damage to their work which consequently disrupts their reputation. Certain provisions are provided under Section 14 of the Indian Trademarks Act, 1999, which make use of personal names non-permissible. Personality Rights are also protected under the common law remedy of passing off and that of the Law of Torts protecting against the tort of disparagement, libel or slander. JUDICIAL RECOGNITION OF PUBLICITY RIGHTS The common law right of publicity recognises the commercial value of a photograph or representation of a prominent person and protects his proprietary interest in the profitability of his public reputation or persona. The courts in India, by applying right of publicity in various instances, have been able to decide upon cases wherein the Personality Rights of public figures had been affected. Since the words such as “Celebrity”, “famous Personality” or “publicity rights” have not been defined under any statute, the question of who is a celebrity and if the said person in question is entitled to get his/her publicity rights enforced is subjective. Personality Rights have a wide scope and have been interpreted by courts in different scenarios to enforce the rights of celebrities. In Shivaji Rao Gaikwad vs. Varsha Productions, the Madras High Court while deciding the case filed by the prominent Indian Actor Mr. Rajinikanth held that despite that there is no definition of “Personality Right” under any Statute in India, courts in India have given the same in various judicial pronouncements. FALSE ENDORSEMENT BY CELEBRITIES Well-known figures suffer damage to their personality rights often but also it is seen that the general public suffers due to misleading and false advertisements. As Indian courts have considered recognition of Personality Rights, the Government has also amended the Consumer Protection Act of 2019 to protect the consumers by keeping a check on misleading advertisements and endorsements of consumer products by imposing penalty on the endorser as well. Recently, a consumer court in Kerala has held a film actor Anoop Menon, liable for making false claims endorsing a hair product.
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tathyalawacademy
Jan 13, 2021
In Miscellaneous
Date: 13th January, 2021 by Ambica Sharma, TIPS, Dwarka WHAT IS A TRADEMARK? A trademark is an easily recognizable symbol, phrase, or word that indicates a specific product from a particular company. It differentiates a product or service from all other similar products and recognizes the source company's ownership of the brand. The primary function of a trademark is to show the standard of a product/service to a customer. It is also a kind of symbol of an assurance made by a company to its customers. POSITION MARK A position mark consists of a specific placement of a trademark on a product. A position mark is often represented by a picture that shows how the mark is positioned and what size and proportion it's compared to the merchandise it's placed on. A position mark is also one of those called “non-traditional marks”, a mark consisting of the precise way during which it's placed or affixed to the merchandise. REGISTRATION OF A POSITION MARK The positional trademark portrays graphically, an in-depth and clear description of the position of the positional trademark on a specific product becomes essential for the application of trademark registration. It's necessary to specify a product (providing drawings) and indicate the position of the positional mark on the product while filling the application. Since a specific positional trademark is or will be used on identical objects, it is also important to include both the graphical representation of the position of the mark and the additional information explaining about the position of the mark on the object. Neither the entire depicted form nor the mark is often separately protected as a trademark. However, the mark placed on the precise position of the merchandise is indeed protected. The following aspects must be taken into account while assessing whether the positional mark may be registered as the trademark: Position. The particular positioning of the mark can be considered as an indication of origin only in cases when its positioning is a rare subject to a particular market. It is important to seek out whether a consumer expects the mark to be usually displayed within the specific position of the merchandise. Mark. If it's regarded only as an ornamental element, the typical consumer won't evaluate the mark because of the indication of origin. Consequently, the mark will not have the distinctive feature. An example is given by Levi Strauss. Levi’s red tab jeans are easily distinguishable by a small red label which is attached to the right back pocket of the jeans. SOURCES: https://www.prv.se/en/trademarks/applying-for-a-trademark/what-is-a-trademark/different-types-of-trademark/ http://www.ipdigit.eu/2014/02/positional-trademarks-what-makes-them-distinctive/ https://metidalaw.business/2013/11/21/positional-trademarks-what-are-they/
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tathyalawacademy
Jan 12, 2021
In Miscellaneous
Date: 12th January, 2021 by Shwas Bajaj, UILS, Panjab University INTRODUCTION Typically, a trademark is conceived to be a static, two-dimensional term or a design, which is used to uniquely identify certain goods or services. However, as the digital times have evolved, all the companies are striving hard for making their trademark such that they strike the eyes of the consumer and are memorable. One of such non-conventional trademarks is fluid trademarks. As the name suggests, fluid trademarks, while maintaining a source identifying feature, constantly keep changing. They involve using and constantly creating new variations of the same basic trademark. Such variations are present simultaneously with the original mark by way of keeping the original mark and introducing in the elements of the new design. They reflect a new, modern approach to branding that has found great success in the Internet age. A famous Indian example of a fluid trademark is the iconic Amul Girl, who is used regularly in cartoons to promote the brand in form of a visual commentary on the ongoing political and social issues. Similarly, Google as a worldwide known internet giant frequently changes their homepage by using a Google Doodle to commemorate important events. REGISTRATION OF FLUID MARKS Under Section 15 of the Indian Trade Marks Act, , a provision for registration of a series of trademarks is available. The explanation of the concept enshrined in Section 15 has been done by the draft Manual of Trademarks 2015 in the way that a “person claiming to be the proprietor of several trademarks in respect of the same goods or services which, while substantially resembling with each other in the material particulars thereof, yet differ in respect of matter of a non-distinctive character which does not substantially affect the identity of the trademark…”. While this may to a large extent explain the concept of fluid trademarks, the dynamic nature of a fluid mark does not make it the first priority of brand owners to seek a registration for it. The use and working of a provision like Section 15 is possible only when the anticipation can be made as to what all variants will be made use of for the purpose of representing the trademark. JUDICIAL APPROACH TOWARDS FLUID TRADEMARKS Fluid marks are a fairly recent development in the Indian market and have not yet been tested in courts. It would not be an easy task for right holders to challenge third-party infringements, when the mark is subject to continuous alterations and no consistent use of variants of the mark has been established. However, India provides common law protection to fluid marks. In the case of Proctor and Gamble v. Joy Creators, it was ruled by the Delhi High Court that in order to constitute a trademark violation, it is not essential that a mark must be an exact replica of the registered trademark. The Court stated, “It will be sufficient if the plaintiff is able to show that the trademark adopted by the Defendant resembles its trademark in a substantial degree, on account of extensive use of the main features found in [a] trademark.” In the case of Reebok India Company v Gomzi Active (ILR 2006 KAR 3961, 2007 (34) PTC 164 Karn) it was held by the Karnataka High Court that it must be established by a person who claims the benefit of distinctive usage that secondary meaning and goodwill has been developed by the slogan. The issue before the Hon’ble Court was whether the slogan “I am what I am” had acquired a distinctive character because of use by Gomzi. The Court accepted the contention of Reebok that, due to the fact that the slogan was a generic phrase, it had not acquired a distinctive character with respect to Gomzi’s goods. By way of setting aside the temporary injunction issued by the trial court, the High Court made the observation that no conclusive evidence was present to make inference that a probability of confusion among consumers, because of the reason that the registered trademarks of the two parties were completely different and mere use of the common words ‘I am what I am’ would not result in misleading the consumers. CHALLENGES IN USING FLUID MARKS Third-party variations: Since the fluid marks have an interactive nature, the consumers may create their own distinct alterations of the original mark. As a result, one can witness the rapid creation of new variations. The brand owners would be faced with the tough task of preventing these kinds of third-party variations, because of the fact that it may prove detrimental to their reputation if they enforce their rights against consumers and fans. Confusion among consumers: Random variations of a mark may result in consumer confusion. All efforts to create an association between consumers and the brand are futile and useless if the consumers are unable to identify the original mark. Weakened original mark: The above two factors could result in the risk of the underlying mark being weakened or diluted. Abandonment of underlying mark: If the rights holder indulges itself too much in the creation of new variations of fluid marks in such a manner that excludes making the use of the underlying mark, then it could also lead to the original mark being deemed to have been abandoned. CONCLUSION Thus, an observation which arises is that while fluid trademarks may give substantial freedom and scope to be creative around trademarks, the right of monopolizing on certain non-distinctive features may not be always proven under law. The question of likelihood leading to confusion needs a strict discharge of proof. As the time progresses, it would be interesting to witness how Indian courts interpret the principles of trademark law in cases involving fluid trademark.
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tathyalawacademy
Jan 12, 2021
In Miscellaneous
Date: 11 January, 2020 by Upamanyu Ganguly, ILS Law College, Pune Idea-expression dichotomy is a method used in Copyright law, where the method is used in order to differentiate between an idea and the way the idea is expressed. The general notion in copyrights is that an idea cannot be protected under copyright laws, but the way in which the said idea is expressed (books, movies, plays) can be protected by a copyright. For example, if an author writes a book, he can only get the way he writes in the book, the characters, any artwork copyrighted, but not the idea behind that story. In India, no legislation recognises this distinction, and the method itself is based on judgements laid down by the courts of law, but the principle is very much in use. ORIGINS OF THE MEHTOD The Idea-expression dichotomy originates from the United States Supreme Court case of Baker v. Selden, where the court basically held that the practical or the useful idea that is presented in a book can be patented, however, the format of presenting the same idea cannot be patented and this presentation and description of the idea can only be copyrighted. The purpose of this distinction between an idea and an expression is to allow the free communication of the facts presented in the work, while protecting the author’s mode of presenting the facts, that is, the way he expresses it. In the English case, Donoghue v. Allied Newspaper Ltd., the court stated that if the person has clothed the idea in any form, by means of picture, play or book, then in such a case only the form in which the idea is clothed is copyrightable. CASE LAWS IN INDIA As mentioned earlier, Indian legislation does not recognise the idea expression dichotomy, however, the principle itself is used by the courts in India. In the case of RG Anand V. Deluxe Films (1978 AIR 1613), the plaintiff had written a play titled Hum Hindustani, for which the defendants wrote a letter expressing their desire to create a movie based on the play. The plaintiff and the defendant discussed the play and no commitments were made. Later, the plaintiff believed that the movie titled New Delhi was based on his play, and filed a suit against the defendants. The Supreme Court held that the movie does not amount to an infringement of a copyright, even though both the movie and the play were based on similar ideas, the way the idea was expressed was vastly different from each other, and ruled against the plaintiff. The High Court of Bombay used the idea-expression dichotomy in the case of Mansoob Haider V. Yashraj Films (Suit No. 219 of 2014), stating that an idea cannot be copyrighted, and any residue left behind after filtering out the dissimilarities, or any similarities in idea is not copyrightable. In the case of Chancellor Masters and Scholars of the University of Oxford v. Narendra Publishing House and Ors (2008 (38) PTC 385 (Del) )., the Delhi High Court decided that publishing a guidebook that independently solved the questions of a textbook does not amount to an infringement of copyright, as the idea is similar, but the content is not so. CONCLUSION The idea-expression comes into play in order to basically protect the author’s medium of expressing an idea, while allowing the free flow of the ideas themselves. Another interesting but broader doctrine is that of the merger doctrine, which comes into play when an idea can only be expressed effectively in limited forms, such as rules, and in such cases the expression is also not copyrightable. It goes without saying that if copyright was so strict as to punish people for using an idea, then that defeats the purpose of free communication in a laissez-faire world.
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tathyalawacademy
Jan 10, 2021
In Miscellaneous
Date: 10th January 2021 by Divya Menon, UILS, Panjab University WHAT IS TRADE DRESS? Over the years, the definition of a trademark has expanded to include the total image of the goods themselves like its packaging, shape, combination of colours or the graphic design. It refers to the visual or sensory appearance of the product. A trademark offers legal protection for a logo, symbol, phrase, word, name, or design used to show the manufacturer of a product whereas a trade dress protects all elements used to promote a specific service or product. Anything that creates the overall look and feel of a brand in the marketplace could be a trade dress. The statutory requirement for the registration of trade dress is the same as that of the registration is word/ logo mark. OBJECTIVES OF TRADE DRESS Often under false presentation, consumers buy an inaccurate product assuming it to be the original one. To prevent such errors, trade dress protection is done. Competitors try to lure consumers by imitating a popular brand that sells the same product. Trade dress protection is intended to protect consumers from packaging or appearance of such imitating products. Registration of trade dress, as with all other forms of the intellectual property, provides a distinct advantage to a business and prevents duplicity. A registered trade dress has several advantages over a non-registered one in course of litigation. TRADE DRESS IN INDIAN LAWS There is no separate provision for trade dress in India under its existing Trade mark legislation unlike the US law which recognizes the concept trade dress under Section 43(a) of the Lanham Act. The Trades Mark Act,1999 largely recognises the concept of trade dress on the lines of The Lanham Act. The amended Act of 1999 recognizes trade dress through the new definition of Trade mark that consists of the shape of goods, packaging or combination of colours or any combination thereof. It is Section 2 of the Trades Mark Act, 1999 that defines- (m) "mark" includes a device, brand, heading, label, ticket, name, signature, word, letter, numeral, shape of goods, packaging or combination of colours or any combination thereof; (q) "package" includes any case, box, container, covering, folder, receptacle, vessel, casket, bottle, wrapper, label, band, ticket, reel, frame, capsule, cap, lid, stopper and cork; Hence the new definition of trade mark under Indian law comprises all the elements of the trade dress as under US law. But one must agree that the jurisprudence around trade dress in India is still in its nascent stage. DEVELOPMENT OF THE CONCEPT THROUGH CASE LAWS Colgate Palmolive Company v. Anchor Health and Beauty Care Pvt. Ltd 1 (October 29, 2003) was the first case in India to acknowledge the concept of trade dress and provide protection for the same. Here, J. Kapoor held ‘This criterion flows from the concept of action of passing off developed over the years that it is the similarities and not the dissimilarities which go to determine whether the action for passing off is required or not. That is why in trademark cases even the deceptive similarities are considered sufficient for infringement of the trademark. If similarities of trade dress are substantial from the look of the two goods, it comes within the mischief of passing off." Christian Louboutin Sas Vs Mr. Pawan Kumar & Ors.2 (December 2017, Delhi HC): a landmark case in first instance where a court has declared a trade dress a well-known status just like a trademark. The growth in the concept of trade dress as seen through these cases point to the significance of courts according trade dress protection on similar grounds as that of trademark over the years. REFERENCES: https://www.mondaq.com/india/trademark/262928/trade-dress-concept-and-indian-practice https://www.ipwatchdog.com/2016/06/03/differences-design-patents-trade-dress/id=69591/ http://www.legalserviceindia.com/articles/tdres.htm
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tathyalawacademy
Jan 08, 2021
In Miscellaneous
Date: 7 January, 2021 by Rutuja The Reserve Bank of India had issued guidelines for licensing of new banks on Jan 22,1993, which are as follows: - The minimum value to start a bank is 500 crores. To start with a bank, they have to give a minimum paid-up capital of 200 Crores and later when the bank starts functioning, they have to pay an additional capital of 300 Crores. This means that the bank shall have 500 crore all the time. Private Sector entities must have a successful track record of 10 years and they should own assets worth 5000 crores or more. Big industrial houses/organizations are not eligible to open a new private bank but they can invest 10% in the banks. NOFHC/Promoters of the bank have to hold at least 40% of the paid-up capital, which must be locked in for 5 years from the date of commencement of the bank. In any case, the share of the promoter/ NOFHC must be brought down to 15%. The Foreign Direct Investment (FDI) limit within the bank is selected on the grounds of the FDI Policy implemented within the country.At present, the limit of FDI within the banking sector is 75%. However, the central government is mulling to create it 100%. The New bank will open a minimum of 25% of their branches in non-bank rural areas. 40% of “Adjusted Net Bank Credit” shall be provided to the Priority Sector Lending by Domestic scheduled commercial banks. Within 6 years from the date of commencement of the business, the new bank needs to list its shares stock exchanges. The business plan submitted by the applicant/promoter should be realistic and feasible and address how the bank proposes to attain financial inclusion within the country. The bank must abide by the rules and regulations given in the Banking Regulation Act,1949. CRITERIA FOR CHANGING NBFCs (Non-Banking Financial Company) INTO PRIVATE BANKS- The company should have a minimum net worth of 200 crores and this figure will be raised to 300 crores after 3 years of the bank's opening. They should have a clean and successful track record as per RBI’s rules and regulations. The company should be owned or controlled by a major industrial organization or public authority such as local, state or central government. AAA should be the latest minimum credit ratings of the NBFC. NBFCs also has to comply with RBI’s guidelines in the following areas – Lending to the priority sector NRI equity participation Promoters' contribution Foreign equity participation Lock-in period for contributions made by the promoters Relationship with promoters and investors Diluting the promoters' shares once it crosses the minimum specified limit Some additional criteria: - The promoters, the proposed bank, and the group companies will agree to the RBI’s consolidated supervision system The promoters can set up the head offices at any place in India according to their convenience The bank will not be permitted to establish a mutual fund or subsidiary for a minimum of 3 years after it starts operations The bank should use the latest infrastructural facilities and equipment such as telecommunications and computers to make sure customers can be provided with services in a cost-efficient way. It should also have a properly functional Customer Grievances Cell. SOURCES – https://business.mapsofindia.com/how-to-start/bank.html https://www.jagranjosh.com/general-knowledge/guidelines-of-rbi-for-on-tap-licensing-of-private-banks-1523516839-1
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