Category Archives: Legal Provisions

Anticipation

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A summary of what Chapter VI of the Indian Patents Act has to say on the subject of Anticipation:

Anticipation by previous publication
An invention claimed in a complete specification is not deemed to have been anticipated merely because  the invention was published before an application for it to be granted patent protection was filed if the patentee or the applicant for the patent or any person from whom he derives title proves that the matter published was obtained from and then published without his consent. Additionally, he must prove that the application was made as soon as reasonably practicable  after he  learned of the publication. This does not apply if the invention was commercially worked in India before the filing of the patent application, otherwise than for the purpose of reasonable trial,  by him or with his consent.
If  a complete specification is filed in pursuance of an application for a patent made by a person being the true and first inventor or deriving title from him, an invention claimed in that specification is not deemed to have been anticipated only because another application for a patent in respect of the same invention  was made in contravention of the rights of that person, or because  the invention was used or published without the consent of the true and first inventor after the date of filing of that other application either by its applicant  or by any other person in consequence of any disclosure of any invention by that applicant

Anticipation by previous communication to Government
An invention claimed in a complete specification  is not deemed to have been anticipated  only because of the communication of the invention to the Government or to any person authorised by the Government to investigate the invention or its merits, or of anything done, in consequence of such a communication, for the purpose of the investigation.

Anticipation by public display, etc.
An invention claimed in a complete specification  is not deemed to have been anticipated  only because of:
a.    its display or use  with the consent of the true and first inventor or a person deriving title from him at an industrial or other exhibition notified by the Central Government  in the Official Gazette; or
b.    the publication of any description of the invention in consequence of the display or use of the invention at any such exhibition; or
c.    the use of the invention, after it has been displayed or used at any such exhibition and during the period of the exhibition, by any person without the consent of the true and first inventor or a person deriving title from him; or
d.    the description of the invention in a paper read by the true and first inventor before a learned society or published with his consent in the transactions of such a society,
if the application for the patent is made by the true and first inventor or a person deriving title from him not later than six months after the opening of the exhibition or the reading or publication of the paper, as the case may be.

Anticipation by public working
An invention claimed in a complete specification  is not deemed to have been anticipated only because it was publicly worked in India (by the patentee or applicant for the patent or any person from whom he derives title, or by any other person with the consent of the patentee or applicant for the patent or any person from whom he derives title) at any time within one year before the priority date of the relevant claim of the specification if the working was effected for the purpose of reasonable trial only and if it was reasonably necessary, having regard to the nature of the invention, that the working for that purpose should be effected in public.
 
Anticipation by use and publication after provisional specification
If  a complete specification is filed or proceeded with in pursuance of an application which was accompanied by a provisional specification or is treated as such by virtue of a direction under Section 9(3) if the Patents Act, 1970,   the Controller will not refuse to grant the patent, and the patent  is not revoked or invalidated, only because any matter described in the provisional specification or in the specification treated as  such was used in India or published in India or elsewhere at any time after  that specification was filed.
If  a complete specification is filed in pursuance of a convention application,  the Controller will not refuse to grant the patent, and the patent  is not revoked or invalidated, only because any matter disclosed in any application for protection in a convention country upon which the convention application is founded was used in India or published in India or elsewhere at any time after the date of that application for protection.

The Contempt of Courts Act

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The Contempt of Courts Act was enacted in 1971. It extends to the whole of India although it does not apply to the State of Jammu and Kashmir except with reference to contempt of the Supreme Court.

The Act speaks of both civil and criminal contempt of court and of how they are to be dealt with. However, no court can impose a sentence under this Act for a contempt of court unless it is satisfied that the contempt is of such a nature that it substantially interferes, or tends substantially to interfere with the due course of justice.

The Act does not enlarge the scope of contempt of courts. And any defence which is a valid defence in any proceedings for contempt of court may be availed of as a defence in contempt proceedings notwithstanding any of the provisions of the Contempt of Courts Act, 1971.

The Chief Justice of India, K G Balakrishnan has said that the provisions of the Act aim to uphold the majesty of the judiciary and not terrorize the media.

In the judgment in the Arundhati Roy contempt case, delivered on March 6, 2002, a Bench of the Supreme Court comprising Justices G B Pattanaik and R P Sethi explained the law of contempt with reference to quite a few cases in the following terms:

“The only weapon of protecting itself from the onslaught to the institution is the long hand of contempt of court left in the armoury of judicial repository which, when needed, can reach any neck howsoever high or far away it may be. In Re: Vinay Chandra Mishra (the alleged contemner) [AIR. 1995 SC 2348], the Supreme Court reiterated the position of law relating to the powers of contempt and opined that the judiciary is not only the guardian of the rule of law and third pillar but in fact the central pillar of a democratic State. If the judiciary is to perform its duties and functions effectively and true to the spirit with which they are sacredly entrusted to it, the dignity and authority of the courts have to be respected and protected at all costs. Otherwise the very corner-stone of our constitutional scheme will give way and with it will disappear the rule of law and the civilized life in the society. It is for this purpose that the courts are entrusted with extraordinary powers of punishing those who indulge in acts, whether inside or outside the courts, which tend to undermine the authority of law and bring it in disrepute and disrespect by scandalising it. When the court exercises this power, it does not do so to vindicate the dignity and honour of the individual judge who is personally attacked or scandalised, but to uphold the majesty of the law and of the administration of justice. The foundation of the judiciary is the trust and the confidence of the people in its ability to deliver fearless and impartial justice. When the foundation itself is shaken by acts which tend to create disaffection and disrespect for the authority of the court by creating distrust in its working, the edifice of the judicial system gets eroded.

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The Definition of Domestic Violence under the DV Act

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Women are an integral part of Indian society but suffer from the violence in the family which doesn’t seem to be substantially curbed by either education or awareness. In fact, Domestic Violence is one of the few phenomena which seems to have cut across all the cultural, socio-economic, educational, ethnic and religious barriers which usually divide society, and, absurdly enough, it seems to increase with a rise in a woman’s education and also prevails among the elite — such as they are.

Before the 2005 Act was passed, there had been attempts by the Government to help protect women (such as by introduction of The Protection from Domestic Violence Bill, 2002 was supposed to do). The Bill was, however, widely criticized as was the one which came before it and was not passed by Parliament.

One of the problems with the Bill was that it didn’t define what Domestic Violence clearly. It spoke of habitually assaulting a woman and no one seemed to know exactly how frequently a woman had to be assaulted for the assault to be habitual.

The 2005 Bill, however, defines domestic violence quite comprehensively. Also, the definition under the Act is not exhaustive.

Under Section 3 of the Domestic Violence Act, 2005, any of several possible perpetrators of domestic violence can be dealt with. These perpetrators are referred to as ‘the respondent’ in the statute and have been defined as any adult male person who is or has been, in a domestic relationship with the aggrieved woman and against whom she has sought any relief under the Act. The perpetrator may be the woman’s husband or a man with whom she shares a relationship in the nature of a marriage.

‘Woman’ means any woman who is or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent and a ‘domestic relationship’ means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage or through a relationship in the nature of marriage, adoption or are family members living together as a joint family.

A ‘child’ means any person below the age of eighteen years and includes any adopted, step or foster child.

Any act, omission or commission or conduct of the respondent constitutes domestic violence if it:

  • harms or injures or endangers the health, safety, life, limb or well-being, whether mental or physical, of the woman or tends to do so and includes causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse
  • harasses, harms, injures or endangers the woman with a view to coerce her or any other person related to her to meet any unlawful demand for any dowry or other property or valuable security
  • has the effect of threatening the woman or any person related to her by any conduct mentioned above
  • otherwise injures or causes harm, whether physical or mental, to the woman.

Explanations

1. ‘Physical Abuse‘ means any act or conduct which is of such a nature as to cause bodily pain, harm or danger to life, limb or health or impair the health or development of the woman and includes assault, criminal intimidation and criminal force.

2. ‘Sexual Abuse‘ includes any conduct of a sexual nature that abuses, humiliates, degrades or otherwise violates the dignity of woman.

3. ‘Verbal and Emotional Abuse‘ includes:

  • insults, ridicule, humiliation, name calling and insults or ridicule specially with regard to not having a child or a male child
  • repeated threats to cause physical pain to any person in whom the woman is interested.

4. ‘Economic Abuse‘ includes:

  • deprivation of all or any economic or financial resources to which the woman is entitled under any law or custom whether payable under an order of a Court or otherwise or which the woman requires out of necessity including, but not limited to, household necessities for the woman and her children, if any, Stridhan, property, jointly or separately owned by the woman, payment of rental related to the shared household and maintenance
  • disposal of household effects, any alienation of assets whether movable or immovable, valuables, shares, securities, bonds and the like or other property in which the woman has an interest or is entitled to use by virtue of the domestic relationship or which may be reasonably required by the woman or her children or her Stridhan or any other property jointly or separately held by the woman
  • prohibition or restriction to continued access to resources or facilities which the woman is entitled to use or enjoy by virtue of the domestic relationship including access to the shared household.

‘Shared household’ means a household where the person aggrieved lives or at any stage has lived in a domestic relationship either singly or along with the respondent and includes such a household whether owned or tenanted either jointly by the woman and the respondent or owned or tenanted by either of them in respect of which either the woman or the respondent or both jointly or singly have any right, title, interest or equity and includes such a household which may belong to the joint family of which the respondent is a member, irrespective of whether the respondent or the woman has any right, title or interest in the shared household.

To determine whether any act, omission, commission or conduct of the respondent constitutes ‘domestic violence’ under the Act, the overall facts and circumstances of the case shall be taken into consideration.

Proposal to Transfer Forest Land to a Shrine

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In news from Jammu and Kashmir, a cabinet decision has ordered the transfer of some forest land to the Shri Amarnath Shrine Board – the exact area is disputed.

It isn’t immediately clear how the government has ordered this since both Supreme Court guidelines and the Forest Conservation Act prohibit the use of forest land for non-forest purposes.

The Supreme Court had issued the following directives with reference to the conservation of forests in Jammu and Kashmir in the case of T.N. Godavarman Thirumulkpad v. Union of India & Ors. decided on December 12, 1996 decided by Justices J.S. Verma and B.N. Kirpal:

1. There will be no felling of trees permitted in any “forest”, public or private. This ban will not affect felling in any private plantations comprising of trees planted by private persons or the Social Forestry Department of the State of Jammu & Kashmir and in such plantations, felling will be strictly in accordance with law.

2. In `forests’, the State Government may either departmentally or through the State Forest Corporation remove fallen trees or fell and remove diseased or dry standing timber, and that only from areas other than those notified under the Jammu & Kashmir Wild Life Protection Act, 1978 or any other law banning such felling or removal of trees.

3. For this purpose, the State Government will constitute an Expert Committee comprising of a representative being an IFS Officer posted in the State of Jammu & Kashmir, a representative of the State Government, and two private experts of eminence and the Managing Director of the State Forest Corporation (as Member Secretary) who will fix the qualitative and quantitative norms for the felling of fallen trees, diseased and dry standing trees. The State shall ensure that the trees so felled and removed by it are strictly in accordance with these norms.

4. Any felling of trees in forest or otherwise or any clearance of land for execution of projects, shall be in strict compliance with the Jammu & Kashmir Forest Conservation Act, 1990 and any other laws applying thereto. However, any trees so felled, and the disposal of such trees shall be done exclusively by the State Forest Corporation and no private agency will be permitted to deal with this aspect. This direction will also cover the submerged areas of the THEIN Dam.

5. All timber obtained, as aforesaid or otherwise, shall be utilised within the State, preferably to meet the timber and fuel wood requirements of the local people, the Government and other local institutions.

6. The movement of trees or timber (sawn or otherwise) from the State shall, for the present, stand suspended, except for the use of DGS & D, Railways and Defence. Any such movement for such use will:
a) be effected after due certification, consignment-wise made by the Managing Director of the State Corporation which will include certification that the timber has come from State Forest Corporation sources; and
b) be undertaken by either the Corporation itself, the Jammu & Kashmir Forest Department or the receiving agency.

7. The State of Jammu & Kashmir will file, preferably within one month from today, a detailed affidavit specifying the quantity of timber held by private persons purchased from State Forest Corporation Depots for transport outside the State (other than for consumption by the DGS & D, Railways and Defence). Further directions in this regard may be considered after the affidavit is filed.

8. No saw mill, veneer or plywood mill would be permitted to operate in this State at a distance of less than 8 Kms. from the boundary of any demarcated forest areas. Any existing mill falling in this belt should be relocated forthwith.

Flasher Fined

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A trial Court imposed a fine of 3000 INR on Shivram Hambare, an employee of the Government Security Press in Nashik for flashing his penis before his female neighbour after an argument. Justice RY Ganoo of the Bombay High Court upheld the fine.

He had been convicted of an offence under Section 509 of the Indian Penal Code which deals with acts or gestures intended to insult a woman’s modesty. It says that whoever, intending to insult the modesty of any woman, utters any word, makes any sound or gesture, or exhibits any object, or intrudes upon the privacy of such woman, shall be punished with simple imprisonment for a term which may extend to one year, or with fine, or with both. The person who says or makes words, sounds or gestures must intend that the woman hear them. If he displays an object, he must intend that the woman see it. In other words, an inadvertent gesture or speech is not an offence under this section.

Sexual Harassment in the Workplace

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The State of Karnataka plans to enact a law to protect women against harassment in work places.

In the 1997 case of Vishaka v. State of Rajasthan, the Supreme Court laid down guidelines and norms for observance at all work places or other institutions, until a legislation to prevent sexual harassment in the workplace was enacted. Such a Bill exists but it has not yes been passed by Parliament and become law.

The guidelines laid down by the Supreme Court were laid down in the exercise of the power available to it under Article 32 of the Constitution for enforcement of the fundamental rights and are treated as the law declared by the Court under Article 141 of the Constitution. This means that they are binding on all Indian courts.

The GUIDELINES and NORMS prescribed by the Supreme Court are:

1. Duty of the Employer or other responsible persons in work places and other institutions:
It shall be the duty of the employer or other responsible persons in work places or other institutions to prevent or deter the commission of acts of sexual harassment and to provide the procedures for the resolution, settlement or prosecution of acts of sexual harassment by taking all steps required.

2. Definition:
For this purpose, sexual harassment includes such unwelcome sexually determined behaviour (whether directly or by implication) as:
a) physical contact and advances;
b) a demand or request for sexual favours;
c) sexually coloured remarks;
d) showing pornography;
e) any other unwelcome physical verbal or non-verbal conduct of sexual nature.

Where any of these acts is committed in circumstances where under the victim of such conduct has a reasonable apprehension that in relation to the victim’s employment or work whether she is drawing salary, or honorarium or voluntary, whether in government, public or private enterprise such conduct can be humiliating and may constitute a health and safety problem. It is discriminatory for instance when the woman has reasonable grounds to believe that her objection would disadvantage her in connection with her employment or work including recruiting or promotion or when it creates a hostile work environment.

Adverse consequences might be visited if the victim does not consent to the conduct in question or raises any objection thereto.

3. Preventive Steps:
All employers or persons in charge of work place whether in the public or private sector should take appropriate steps to prevent sexual harassment. Without prejudice to the generality of this obligation they should take the following steps:
(a) Express prohibition of sexual harassment as defined above at the work place should be notified, published and circulated in appropriate ways.
(b) The Rules/Regulations of Government and Public Sector bodies relating to conduct and discipline should include rules/regulations prohibiting sexual harassment and provide for appropriate penalties in such rules against the offender.
(c) As regards private employers steps should be taken to include the aforesaid prohibitions in the standing orders under the Industrial Employment (Standing Orders) Act, 1946.
(d) Appropriate work conditions should be provided in respect of work, leisure, health and hygiene to further ensure that there is no hostile environment towards women at work places and no employee woman should have reasonable grounds to believe that she is disadvantaged in connection with her employment.

4. Criminal Proceedings:
Where such conduct amounts to a specific offence under the Indian Penal Code or under any other law the employer shall initiate appropriate action in accordance with law by making a complaint with the appropriate authority.
In particular, it should ensure that victims, or witnesses are not victimized or discriminated against while dealing with complaints of sexual harassment. The victims of sexual harassment should have the option to seek transfer of the perpetrator or their own transfer.

5. Disciplinary Action:
Where such conduct amounts to misconduct in employment as defined by the relevant service rules, appropriate disciplinary action should be initiated by the employer in accordance with those rules.

6. Complaint Mechanism:
Whether or not such conduct constitutes an offence under law or a breach of the service rules, an appropriate complaint mechanism should be created in the employer’s organization for redress of the complaint made by the victim. Such complaint mechanism should ensure time bound treatment of complaints.

7. Complaints Committee:
The complaint mechanism, referred to in (6) above, should be adequate to provide, where necessary, a Complaints Committee, a special counsellor or other support service, including the maintenance of confidentiality.
The Complaints Committee should be headed by a woman and not less than half of its member should be women.
Further, to prevent the possibility of any under pressure or influence from senior levels, such Complaints Committee should involve a third party, either NGO or other body who is familiar with the issue of sexual harassment.
The Complaints Committee must make an annual report to the government department concerned of the complaints and action taken by them. The employers and person in charge will also report on the compliance with the aforesaid guidelines including on the reports of the Complaints Committee to the Government department.

8. Workers’ Initiative:
Employees should be allowed to raise issues of sexual harassment at workers meeting and in other appropriate forum and it should be affirmatively discussed in Employer-Employee Meetings.

9. Awareness:
Awareness of the rights of female employees in this regard should be created in particular by prominently notifying the guidelines (and appropriate legislation when enacted on the subject) in suitable manner.

10. Where sexual harassment occurs as a result of an act or omission by any third party or outsider, the employer and person in charge will take all steps necessary and reasonable to assist the affected person in terms of support and preventive action.

11. The Central/State Governments are requested to consider adopting suitable measures including legislation to ensure that the guidelines laid down by this order are also observed by the employers in Private Sector.

12. These guidelines will not prejudice any rights available under the Protection of Human Rights Act, 1993.

An Accessible Overview of Trademark Law in India

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Copyright 2008 Amritesh Mishra

Introduction

The Trade Marks Act was passed in the year 1999. Prior to this Act, there was The Trade and Merchandise Marks Act, 1958. Till 1958, trade marks were governed by the Indian Penal Code. In the simplest terms, a trade mark is a name under which the goods are traded e.g. Reebok, Sony, Versace, French Connection UK etc. are trademarks.

In addition to this, the titles of movies like Swades and Rang De Basanti, coined names of characters by scriptwriters and authors like James Bond, Gabbar Singh, etc., logos such as Apple’s Apple, ‘tag lines‘ like Humara Bajaj, the shape of goods, their packaging, and combination of colours e.g. white and red in a blue border logo of Tommy Hilfiger. Under the new Act, certification marks like ISO 9002, SFA, ISI, and collective marks like Khadi are also trade marks.

Thus, anything which distinguishes goods and services of one from others and is used in trading is a trademark.

It would be pertinent to note that celebrity names e.g. Brad Pitt, David Beckham, Jennifer Lopez, perfume scents of Brut, Nivea or even of antiseptic lotions, advertising jingles that make it easy for people to distinguish one brand of goods or one person’s services from those offered by others are also treated as trade marks. For example, the signature tune of Nokia mobile phones, the engine sound of Harley Davidson motorcycles, and domain names such as ferrariworld.com (if they are not used merely as contact information) are also trademarks in those countries which are members of Madrid Agreement or Singapore Treaty. These marks are not recognized as trade marks in India.

The Trade Marks Act, 1999 gives legal protection to goods and services: ‘goods’ includes food, cosmetics, apparels, accessories, and electronics etc. while ‘services’ includes entertainment, telecommunications, transport, and education etc. In relation to goods, the marks are referred to as trademarks (TM) and whereas, in relation to services, they are called service marks (SM).

Registered Trademark and Unregistered Trademark

A trademark is registered when the name of its proprietor is entered in the register and a certificate of registration is issued by the registrar; till then it is an unregistered trademark. It is always advisable to get a trademark registered as it generally gets a better protection. However, Indian law recognizes the first-to-adopt and not the first-to-file system. So, even if a trademark is not registered but was adopted before anyone else, it would get a protection under the Indian Law; the person who adopts it later will be asked to desist from further using the trademark even if he has filed for registration and the person who adopted it earlier has not done so.

Once the trademark is registered, the proprietor can use the ® symbol to indicate that the mark is registered and the registration is subsisting. Many local traders use the sign on their trademark even when it is not registered. However, doing this may attract serious penalties: imprisonment upto 3 years or fine or both. The symbol ® can only be used for a registered trade mark. However, an unregistered trademark or service mark is not precluded from using the ™ / SM symbol, as the case may be.

How to Register

  • Application: A written and signed application is to be made to the registrar in the appropriate trademark registry for registration + payment of fees.
  • Advertisement: Once the application is fully accepted, it is advertised in the journal.
  • Opposition: After the advertisement is made, any person may within three months oppose the registration. Generally, opposition is seen when any prior user exists who is using the trademark or when the trademark is identical with or similar to an existing trademark.
  • Hearing: The registrar will give a hearing to the parties.
  • Registration: If the hearing is decided in favour of the applicant, certificate of registration is issued.

Duration

A trademark registration is valid for ten years from the date of filing and after that it can be renewed again and again for a period of ten years by paying the renewal fee.

Infringement and its Remedy

When any person knowingly and without the permission of the registered proprietor uses a trademark, he infringes a trademark. This is a violation the law. Thus, a person using any trademark e.g. Panasonic, Dunhill, McDonald’s etc. without permission from its respective proprietor(s) infringes the trademark in question. In addition to this, if a person uses a trademark deceptively similar to another established trademark, he infringes the trademark e.g. a person adopting a trademark like Phillipz or Marootee would infringe the trade mark of Philips or Maruti respectively.

Relief

The infringer will be restrained (by an order of injunction) from using the trademark. He may be also asked to pay damages or share the profits earned and to deliver the infringing labels for their destruction. The infringer may also be punished under the criminal law (by imprisonment of six months to three years and fine). The civil and criminal actions may be initiated simultaneously.

The suit ordinarily is to be filed in a district court. Where the trademark is a registered one, a suit for infringement under the trademark law is filed. An unregistered trade mark can also be protected: where the trademark is an unregistered one, a suit for passing off is filed under the Common Law.

Passing off is not same as infringement. In the case of passing off, legal action is not merely for using the mark but for passing off goods by using an identical or a deceptively similar mark.

See Important Concepts in Indian Trade Mark Law

(Amritesh Mishra is an ex-student of ILS Law College, Pune.)