Section 28(3) of Trade Marks Act Protects Infringement Only for Similar Goods: Delhi High Court

Last week, Delhi High Court had to decide a trade mark dispute where an issue had arisen with respect to the usage of two similar trademarks. In A. Kumar Milk Foods Pvt Ltd. v. Vikas Tyagi& Ors, an injunction had been sought against the defendant for restraining it from using the trade mark which had alleged deceptive similarity with trade mark of plaintiff. The plaintiff, A. Kumar Milk Foods Pvt Ltd., was the proprietor of the registered trade mark, ‘SHRIDHAR’, which had been granted for Class-29 goods such as ghee, edible oils, milk, dairy products etc. The Defendants, Vikas Tyagi and M/s. Shreedhar Dairy Products, were the proprietor of a similar trade mark, ‘SHREEDHAR’, but the same had been granted for the Class-30 Goods, i.e., Atta, Maida and Besan. Though the defendants had also sought registration of ‘SHREEDHAR’ for Class-29 goods, the application is still pending and the same has been opposed by the plaintiff.

(Image Source: Apex Law Group LLP)

In the present case, it had been claimed by the plaintiff that its trade mark had become distinctive and is associated with the above-mentioned Class-29 goods on account of its long, continuous and extensive use. The main problem of the plaintiff is the usage of trade mark, ‘SHREEDHAR’, by the defendant with respect to Class-29 goods since the same Class-29 goods are sold by the plaintiff under the trade mark, ‘SHRIDHAR’. As the impugned Class-29 goods are sold by the defendant under the trademark which is deceptively similar to that of the plaintiff, the same, according to the plaintiff, is the infringement of its trade mark. Further, it was the contention of the plaintiff that such an activity on the part of defendant has also lead to passing-off the impugned Class-29 goods as its goods. On the other hand, it has been the contention of the defendants that they have been using the trade mark, “SHREEDHAR”, since October 2003 and that their use of the trade mark was prior than that of the plaintiff. Contrary to the submissions of plaintiff, defendants submitted that it is the plaintiff which had copied its trade mark.

Bilateral Investment Treaties and their overriding effect over sovereign law

Bilateral Investment Treaties (BIT) are agreements entered into between two sovereigns with the fundamental objective of promoting investments. While such international commitments do ensure an influx of foreign capital, they often undermine the legislative framework of the countries parties to the agreements. 

In an erudite article in the The Hindu, Mr. Deepak Raju and Mr. Prabhash Ranjan have pointed out the danger of entering into such agreements in relation to hazards they pose to public health.

Key Features of The Pension Fund Regulatory and Development Authority Bill, 2013

Recently, Parliament has passed The Pension Fund Regulatory and Development Authority Bill, 2013 (“Pension Bill”) which seeks to provide for the establishment of a statutory Pension Fund Regulatory and Development Authority (PFRDA) to promote old age income security.[1] The Bill, which is divided into 10 chapters and 56 clauses, has the following key features:

Pension Fund Regulatory and Development Authority (Chapter II): The Bill provides for the establishment of the Pension Fund Regulatory and Development Authority (“Authority”) with its head office in the National Capital Region. The members of the Authority will be appointed by the Central Government and there shall be one member each from the field of economics, finance, law or administrative matters. Apart from the Chairperson, there will be three whole-time and three part-time members. While Chairperson and whole-time members will hold the office for a period of five, the tenure of a part-time should not ‘exceed’ five years.

(Image Source: Emirates 24|7)

Clause 6 of the Pension Bill provides for the conditions (five conditions in total) which can lead to the removal of the Chairperson or any other member of the Authority. If sought to be removed for acquiring interest which is prejudicial to the function as a member or for the reason that his continuance in the office is against public interest, the concerned member will be given an opportunity to be heard.

Delhi High Court directs University of Delhi to re-compute marks in LLB Entrance

In yet another case (Ram KumarJha v. University of Delhi & Ors.) of wrong answer key in an entrance exam, Delhi High Court High Court on Monday has directed the University of Delhi, respondent, for re-computing the score of the petitioner-student, Ram Kumar Jha. The petitioner, who had appeared for the entrance test (2013-14) of Faculty of Law, University of Delhi, was not satisfied with his result. On obtaining his answer sheets and copies of questions via an RTI application, the petitioner noted that answer key in respect of two questions were not correct.

(Image Source: University of Delhi Website)

Consequently, the petitioner approached the High Court for directing the respondent to rectify the answer and to take the admission of the petitioner. The High Court, while accepting the contentions of the petitioner, held that it would be failing to discharge its duty if it does not correct answers which are patently wrong:

                                       “It is  true  that ordinarily  the  Courts should  not  interfered  with  the answers  notified  by  the  examiners  but,  where  the  Court  finds  that  the answer  contained  in  the  answer  key  in  respect  of  a  particular  question cannot even be  said one of the possible correct and appropriate answers, not to speak of the most appropriate answer, the Court would be failing in its duty, if it  does not correct such patently wrong answer and leaves a wronged  candidate  remediless,  particularly  when  the  question  under consideration relates to a field of law.”

Hearing Affected Party not Necessary for "Further Investigation" under Section 26(7) of the Competition Act, 2002

Delhi High Court has recently, in South Asia LGP Company Private Limited v. Competition Commission of India & Ors, held that the affected party does not have a right of hearing before the Competition Commission of India (“Commission”) can order a further investigation under Section 26(7) of the Competition Act, 2002 (“Competition Act”).

In the present case, a complaint was made against the petitioner, South Asia LPG Company Private Ltd, by the respondent no.3, East India Petroleum Private Limited. It was alleged in the complaint that the petitioner was misusing its dominant position in the terminaling services at Vishakhapatnam Port. The relevant market under Section 2(r) of the Competition Act, as identified by the Director General, was ‘upstream and downstream terminaling services at the Vishakhapatnam Port’.

The Commission, under Section 19 of the Competition Act, may inquiry to check whether there has a contravention of the provisions contained in subsection (1) of Section 3 or subsection (1) of Section 4. The said inquiry can be initiated by the Commission either suo moto or on a reference by the government/statutory authority or on receipt of information from a person, i.e., complainant. If Commission is of the prima facie opinion that there is an alleged contravention of the provisions, it can then direct the Director General under Section 26(1) to cause an investigation into the matter.[1]In case the Director General comes to the conclusion that no contravention of the impugned provisions have been made, the complainant is provided with an opportunity to rebut such findings of the Director General under Competition Act.

Is there any Right of Representation by Counsel in an Arbitration Proceeding?

In what can be considered as an important issue for arbitration jurisprudence in India, constitutionality of the clause 15.22 of Multi-Commodity Exchange of India Ltd (MCX) has been challenged before the Madras High Court (Source: The Hindu, The Business Standard and The New Indian Express newspapers).[1] The issue is important since the impugned clause prohibits the parties to represent themselves by counsel, attorney or advocate in an arbitration proceeding.[2] Clause 15.22 of the by-law reads as:

“...15.22 Appearance by Counsel, Attorney or Advocate not permitted

In arbitral proceedings, the parties to the dispute shall not be permitted to appear by counsel, attorney or advocate.”

In the present petition, it has been contended that the impugned clause violates the right to avail the legal assistance in an arbitration proceedings. It was further contended that any award, which is made without allowing the petition to appear by a legal counsel before the arbitration proceedings, can be challenged under Section 34 of the Arbitration and Conciliation Act, 1996 (“Arbitration Act”). Under Section 34 of the Arbitration Act, an arbitral award may be set aside by the court if the party can show that it could not present the case. This comes down to the question whether, in the absence of a counsel or attorney or advocate, it can be said that the concerned party was not able to present its case before the arbitral tribunal.

Advocate-on-Record in the Supreme Court: Legal Profession, Commercialisation and 'Lending of Name'

A few days back, a division bench of the Supreme Court of India (“Supreme Court”) has warned  Rameshwar Prasad Goyal, an Advocate-on-Record (“AoR”), for merely lending his name in several cases [In Re: Rameshwar Prasad Goyal, Advocate].[1] The court, while quoting the phrase “Law is no trade, briefs no merchandise”, vehemently criticised the commercialisation of legal profession which leads to such malpractices. In the present case, a show cause notice was issued to Mr. Goyal when he refused to appear before the Court for clarifying a factual controversy. Later, it appeared that Mr. Goyal had merely lent his name in the impugned matter. In the light of this instance and other prior instances, the purpose which AoR was instituted for has come into question.

Under Section 52 of the Advocates Act, 1961 (“Advocates Act”), a saving provision, Supreme Court has the power to make rules for determining the persons who shall be entitled to act or plead before the court. Though Section 30 of the Advocates Act confers on an enrolled advocate a right to practice before any court, the same has been interpreted by the Supreme Court as being subject to Section 52 of the Advocates Act. While framing such rules under Section 52, Supreme Court exercises the power conferred on it under Article 145 of the Constitution of India, 1950 (“Constitution”).

The system of AoR, created under Supreme Court Rules, 1966 (“Rules”),[2]  is important primarily because they exercise a legalised monopoly in pleading the matters before the Supreme Court. That is, no advocate other than an AoR can file an appearance and act for a party before the Supreme Court.[3] In addition to this, a senior advocate cannot appear before the Supreme Court without an AoR. Last year, the institution of AoR was unsuccessfully challenged before the Delhi High Court (Balraj Singh Malik v. Supreme Court of India through Its Registrar General).[4] Before the High Court, it was contended by the petitioner that AoR merely lends name without being responsible for the conduct of the case. It was further contended that Supreme Court, under Article 145 of the Constitution, has no power to continue the system of AoR. The High Court, while dismissing the petition, was of the opinion that the Supreme Court is competent to create such an institution of AoR. High Court held that:

The Real Estate (Regulation and Development) Bill, 2013

[Note: Author and Contributor of this blog post is Risabh A. Gupta, 3rd Year Student, B.B.A. LL.B. (Hons.), National Law University, Odisha. He can be contacted at rishabh.a.09@gmail.com] 

The Real Estate Regulation and Development Bill, 2013 has been approved by the Union Cabinet on June 4, 2013 after much delay and deliberation. The bill has yet to be approved by the Parliament i.e, Lok Sabha and the Rajya Sabha. After this, the bill would become statute once it receives the presidential assent. Separate Real Estate Bills have been formulated by Maharashtra and Haryana State Governments. Therefore, when enacted, the Central Act would prevail over any State legislation and any provisions repugnant to the Central Act would be void. 

The Bill is aimed at regulating the largely unregulated real estate housing sector. It envisages the creation of a Real Estate Regulatory Authority [hereinafter “Authority”] and an Appellate Tribunal which would act as a watchdog for the housing sector, predominantly towards safeguarding and protecting consumer interests. Also, creation of the tribunals would act as an effective redress mechanism for any disputes. 

The Real Estate Bill envisages providing effective and efficient regulatory framework and environment in the real estate sector which is laced with illegal and black money, corruption, land mafias and red tapism. 

Right to Privacy and Online Social Networking Space: What Indian Law can do?

With a tremendous increase in the usage of social networking website, an equally proportionate concern has also arisen regarding the issue of privacy. Though there are a number of judicial precedents dealing with issue of privacy in relation to telephone interception, surveillance etc, hardly are there any precedents which can sufficiently enlighten one to realise the scope of right to privacy in social networking space. Is there a crucial difference between the privacy in physical and online space? I argue that though there provisions, such as Section 72A of the Information Technology Act, 2000 (“IT Act”), make one criminally liable for negligently sharing personal data information, they are not sufficient for the purpose of online social networking.

In this issue of online space, the primary hurdle arises when seeks to identify the data which requires protection. Not every data can be given protection, for example, data which is already available in public domain. Also since the nature of online space is different, the measure of protection should be different. For instance, it is not as easy to locate a particular data in physical space as one can locate it online using ‘google.com’; hence, data is more vulnerable in online space than in physical space. This problem ultimately directs one to identify the nature of “privacy right” which one enjoys.

If one looks at the dictionary meaning of privacy, there is a possibility of getting an unclear and uncertain definition: ‘a state in which one is not observed or disturbed by other people’.[1]And, if one sees definition of right to privacy provided by the Supreme Court, then there is a possibility of getting a very broad definition. 

Clause 3 of the Draft National Privacy Bill, 2011 confers on every individual a right to privacy. Though a specific definition is not given, the clause contains a list of information which will be covered under the privacy right of an individual. Though there are a number of shortcomings in the (an exhaustive discussion on data protection and Privacy Bill will be done in one of the next posts). I herein discuss the existing legislations and legal principles which deal with the issue of data protection in online networking space.