Sunday, December 28, 2014

Judiciary: Soul of the Constitution

Free and fair judiciary is the soul of the Indian Constitution. By its pro-activeness the Indian judiciary has overcome the orthodox constitutional philosophy and has expanded the scope of right to life so as to read within its compass the right to live with dignity, right to healthy environment, right to humane conditions of work, right to know, right to adequate nutrition and clothing and so on. While dispensing with justice in civil, criminal or constitutional matter a judge not being a party to the Lis always decides the Lis impartially with the best of his ability and knowledge. A judge is deemed to have no knowledge of law but he is enriched by the knowledge of the Learned Councils of both sides. Sitting in the Chair of the Temple of Justice he listens patiently both the parties and comes to a decision which being the toughest job is avoided by the others. While deciding a Lis he cannot satisfy both the parties at a time. Any person being aggrieved by a decision of the court may carry the Lis to the higher forum in appeal or revision or may prefer review of the decision in the same court. This is the eternal beauty of the Indian Judiciary.
Any sort of interference in the functioning of the court in dispensing with justice amounts to contempt; which may be civil or criminal. The Supreme Court being highest body of the Indian judiciary is the custodian of the Constitution and its judgment is binding upon all citizens under Article 141 of the Constitution. Unlike the Supreme Court the High Court of each State is also the Court of Records and enjoys with writ and supervisory jurisdiction under Article 226 and 227 of the Constitution. The Parliament and the State Legislature have right to enact law in their respective field but if such law contradicts with the basic structure of the Constitution or abrogates the fundamental rights guaranteed under Part III of the Constitution the judiciary has right to declare the same as void. That being the settled principle of law it is frequently noticed that some persons constantly attack the judiciary and make indecent statement which knocks down the very foundation of the Indian democracy. It is sadly enough that they are not illiterate or rustic persons but they are educated and sometimes hold responsible status in public life.  
A healthy democracy is a nightmare if Judiciary does not function freely, fairly and independently. To ensure free, fair and independent judiciary the peaceful environment of the court compound is very much essential so that a judge while dispensing with justice remains in peaceful mind and does not face extraneous situation in the court compound. A judge does not fall from the heaven but he is a man of the society with all common virtues of an ordinary man. A chaotic atmosphere inside the court room and also in the court compound distracts the thought-process of a judge. It is therefore, duty of the police to maintain peace and tranquility in and around the court compound. Excepting the Supreme Court and High Courts of different States we hardly find peaceful environment in the subordinate courts particularly the Magistrate Courts.
Recently we saw an unfortunate incident at Alipore Magistrates’ Court which makes this issue afresh. After arrest of one political leader cum minister by the CBI in multi-crores Sarada scam he was taken to produce before the Magistrate’s Court. Thousands of his supporters and party members came on the street, blocked all the public roads and railway tracks in protest of such arrest ignoring the sufferings of the people. Such acts are not only offences under Indian Penal Code but also offence under the provisions of the National Highway Act. The situation turned worst when the Chief Executive of the State joined hands with the law breakers. A panicky situation was also created inside the court compound by unlawful assembly of thousands of unruly persons in presence of police with shouting and slogans as if the court compound was situated in the State of lawlessness. Similar situation was also noticed inside the court room. Such a horror atmosphere is not congenial to a judge in dispensing with justice. It is no doubt an attempt to terrorize a judge by way of power projection which amounts to criminal contempt of the court also.
What wrong the CBI did? Has the CBI been ordered by the Central Government to investigate the Sarada Scam to malign the State Government? No. It is the Supreme Court of India that entrusted the CBI to investigate the Saradha scam spreading over not only in the State of West Bengal but in the States of Tripura, Assam and Orissa also. If the State machinery feels that the CBI has not been working in accordance with law it may approach the Supreme Court for suitable direction upon the CBI. Instead of doing so demonstration in front of the office of the CBI under the leadership of a State Minister and paralyzing the State in protest of arrest of their leader cum minister are ultimately an act of challenging the authority of the highest Court of India and also interference with independent functioning of the judiciary which will not be approved by any civil society. It is very sad to say that the innocent people were led to rise voice on the street by some persons with vested interest in favour of a person who is not only an accused of economic offence but who destroys the trust of the common people also under the cover of the constitutional oath.



http://echoofindia.com/reflex-action/judiciary-soul-constitution-74221

Government to strengthen criminal justice system

Government to strengthen criminal justice system

Toyo sues Toyomoto for trademark infringement

Toyo Tire & Rubber Co. Ltd. and its U.S. subsidiaries are suing Japan Toyomoto Tire Corp. and its affiliates for infringing the Toyo trademark.
At the same time, Toyo reported the U.S. District Court for the District of Nevada has issued a permanent injunction against Toyama Tyre Corp. Ltd. in a similar trademark infringement case filed last November.
Toyo filed the action against Toyomoto, which it calls a Chinese corporation, in the same court in Nevada, where both companies exhibited at the recent Specialty Equipment Manufacturers Association trade show in Las Vegas.
In the complaint, Toyo Tires alleges that Toyomoto is marketing and selling tires using the Toyomoto mark, related domain names, and logos in direct infringement of Toyo Tires’ long established Toyo trade name and trademark.
The complaint states: “Defendants… have intentionally adopted the Toyomoto mark to take advantage of the tremendous reputation and goodwill of the famous Toyo marks, and continue to do so knowing of the irreparable harm that they have caused and will continue to cause Toyo, its marks, and the public.”
The court issued a preliminary injunction against Toyomoto on Nov. 12, stating: “The Toyomoto mark is confusingly similar to the Toyo marks, and the defendants are using the mark for the same goods covered by Toyo’s trademark registrations. In addition, defendants are claiming that they are a Japanese company, (which is likely to exacerbate confusion with Japan-based Toyo), even though defendants are China-based companies.”
The court’s ruling means Toyomoto is preliminarily enjoined from using the Toyomoto mark in commerce, including the sale, distribution, promotion and advertising of tires bearing the Toyomoto mark.
Toyo is seeking permanent injunctive relief to prohibit Toyomoto from continuing to infringe on Toyo Tires’ intellectual property rights, together with other corrective relief, including destruction of infringing products and materials, and recovery for damages arising from Toyomoto’s actions.
Toyomoto is a trademark belonging to Kabusikiki Kaisha Tokyo Nihoon Rubber, a Tokyo-based company founded in 1985 by Takahasi Takuo. The site attributes the name to Mōri Toyomoto, a 15th century warlord of the province of Aki.
Takuo later established Japan Toyomoto Tire Corp. and introduced the tire brand in 2011. The site also lists three subsidiaries: Toyomoto (Beijing) International Trading Co.; Toyomoto Tire (U.S.) Inc.; and Toyomoto OTR Division.
Neither Toyo nor Toyomoto identifies the Chinese manufacturer of the Toyomoto brand, but Toyomoto on its website states it has its own tire manufacturing technology and claims to be supplying technology and know-how to an entity it identifies as Saudi Company for Tyre Manufacturing, which Tyomoto claims is setting up a tire production unit in the Gulf States.

http://www.rubbernews.com/article/20141126/NEWS/141129968/toyo-sues-toyomoto-for-trademark-infringement

Classified Patents, Nintendo, Amazon: Intellectual Property

Maryland inventor has asked a court to clarify whether his patent applications are classified.
Frank Joseph Trunk III of Gaithersburg, Maryland, sued in federal court in Washington, saying he filed patent applications in the area of physics and material physics beginning in 1994. The applications were related to engineering design, “both civil and military,” he said in court papers.
Beginning in January 2000, he said, his applications were made subject to a secrecy order on aircraft and ship stealth technology, submarine stealth technology and nuclear-weapon design. Trunk said he had never been issued a security clearance nor had he ever been granted contractor status that would enable him to get a security clearance.
As a result, he claimed, he was placed under the threat of possible criminal violations for possession of classified information without a security clearance. In his complaint, Trunk said his various attempts over the years to get clarification of his patent applications’ status have brought him contradictory responses. As a result, Trunk said, he has had to forgo possible consulting arrangements with NASA and its contractors because he believes he cannot discuss or disclose the information in his applications.
He asked the court to rule on whether his applications are still classified or if they have been declassified, whether property declassification procedures have been followed and if he is authorized to have access to that information.
Trunk also is seeking a list of agencies that consider the information still classified and a statement of the conditions under which the information may be disclosed.
When he filed his complaint Dec. 8, he asked that the entire case be sealed. The court rejected that request, saying Trunk failed to provide support for his motion to seal “as it is unclear whether the government ever classified the patent applications to begin with.” The court ordered the Trunk’s complaint and the entire case be unsealed.
According to the database of the U.S. Patent and Trademark Office, there is one published patent application -- 20050032029 -- with a Frank J. Trunk listed as the inventor. The application covers a method of solving engineering design problems related to stress, strain and deformation of viscolastic materials, those having viscous and elastic properties. It was submitted in July 2001 and not published until February 2005. It lists an address in Houston for the inventor.
Gary Hnath of Chicago’s Mayer Brown LLP, counsel for Trunk, said in an e-mail this application was originally classified and his client is seeking clarification on whether it has been properly unclassified.
The case is Trunk v. Mabus, 1:14-cv-02139, U.S. District Court, District of Columbia(Washington).

http://www.bloomberg.com/news/2014-12-26/classified-patents-nintendo-new-balance-intellectual-property.html

trademark infringement cases can be decided by USPTO

The way that trademark disputes are fought may be in the balance on Dec. 2, 2014, when the U.S. Supreme Court hears oral arguments in B&B Hardware, Inc. v. Hargis Industries, Inc. Briefing is now complete on whether an administrative decision by the Trademark Trial and Appeal Board (TTAB) of the U.S. Patent and Trademark Office refusing (or canceling) registration of a trademark on the basis of likelihood of confusion (under Section 2(d) of the Lanham Act) should be binding in subsequent trademark infringement litigation directed to use of the same mark.
To find trademark infringement, a district court must find a likelihood of confusion about the source of goods or services. Each court uses a rubric to analyze this, and the TTAB uses a different rubric to assess likelihood of confusion in the Section 2(d) context. But courts in different circuits already use different rubrics to assess likelihood of confusion (some treating it as a question of law, others treating it as a question of fact, and most using their own iteration of factors to be considered), and a final decision from one circuit will nonetheless bar re-litigation of likelihood of confusion in other circuits. B&B says that a TTAB Section 2(d) finding should be treated the same way, and the government supports that position.
Decisions of federal agencies are sometimes given preclusive effect in the district courts. Hargis says that wasn’t Congress’ intent here. Because likelihood of confusion is often the key to a trademark infringement claim, preclusion would render trademark infringement actions pro forma, Hargis argues. Often, but not always. Proving infringement also requires proof that the plaintiff has rights that can be enforced against the defendant, and that isn't always a trivial issue. In B&B itself, Hargis began using its mark before B&B registered its own mark, and if B&B’s mark wasn’t recognized as a mark before Hargis began its use, then Hargis might be permitted to continue its use despite a likelihood of confusion.
TTAB decisions on registrability are reviewable de novo in the district courts, and Hargis says that shows that Congress didn’t intend for TTAB decisions to have preclusive effect. Issues of registrability are the TTAB’s bailiwick, and it would seem incongruous that a TTAB finding on registrability would be reviewed de novo by a district court, while a TTAB finding on likelihood of confusion — the lynchpin of most infringement claims, which are outside the TTAB’s jurisdiction — would be binding on the same court. That compares apples to oranges, however. A TTAB finding on registrability is only subject to de novo review as part of the appeal process. B&B isn’t arguing that a TTAB decision that is still subject to appeal should be binding on the district courts.
Preclusion would deprive accused infringers of their right to a jury trial. But bench trial decisions do sometimes preclude re-litigation even when there was a right to a jury trial. That doesn’t happen when the issue is a question of law, Hargis argues, and, as noted above, some circuits characterize likelihood of confusion as a question of law. Again, however, other circuits treat it as a question of fact, and decisions of administrative agencies on fact issues are sometimes given preclusive effect, or at least deferential, effect.
Preclusion doesn't apply if the issues are different, and Hargis suggests that comparing a finding of likelihood of confusion in the TTAB’s 2(d) context to a finding of likelihood of confusion in an infringement case is like comparing “guilty of robbery” to “guilty of murder.” Comparing “guilty of robbery” to “guilty of murder” is probably more like comparing likelihood of confusion to a different Lanham Act concept: likelihood of dilution.
But focusing on the phrase “likelihood of confusion” alone is too narrow, Hargis says. Infringement requires a likelihood of confusion resulting from a use in commerce, while a Section 2(d) refusal does not require that either mark be actually used. However, the difference in language might be a simple reflection of Congress’ limited power to regulate the use of marks under the commerce clause.
The facts look bad for B&B: Two different juries found in Hargis’ favor, and B&B was admonished below about its litigation tactics. So a quick affirmance shouldn’t be surprising. On the other hand, the Court might decide whether likelihood of confusion is a question of fact or a question of law on its way to resolving the Seventh Amendment issue, and the possibility of a reversal on the merits — with its attendant consequences on how trademark battles are fought — can’t be dismissed.
http://www.insidecounsel.com/2014/12/01/scotus-to-decide-if-lynchpin-of-trademark-infringe

Saturday, December 27, 2014

An acquittal should be an order of simple acquittal: Madras High Court

Setting aside a Magistrate court finding, the Madras High Court has made it clear that an acquittal shall be an order of simple acquittal of an accused in a criminal case where there is no evidence against him and trial courts shall not employ expressions such as "not proved beyond reasonable doubt."
A perusal of the judgment of the trial court would go to show that no one has spoken anything incriminating about the accused. Therefore, the trial court should have acquitted him by recording an order of acquittal without adding any adjectives such as 'not proved beyond reasonable doubt' or 'by giving the benefit of doubt,' Justice S.Nagamuthu said. "The trial court should have acquitted the accused simpliciter without adding any qualification to the word 'acquittal,' the judge said.
Justice Nagamuthu was setting aside the finding recorded by the Judicial Magistrate II of Panrutti in which he had acquitted one E.Kalivarathan saying Kalivarathan was acquitted because the charges against him have not been proved beyond reasonable doubt. Kalivarathan was an accused in a criminal case with eight accused whereas no witnesses implicated him in any manner with the alleged crime in the case. The Magistrate acquitted all the accused including Kalivarathan giving benefit of doubt.
When Kalivarathan applied for the post of Grade II constable the recruitment board rejected his candidature on the ground that the acquittal was not a 'honourable acquittal.' Hence Kalivarathan filed a criminal revision petition to convert the acquittal as an honourable acquittal.
"If there are findings in the order or judgment of acquittal, which are adverse to the interest of the accused, as an aggrieved person, he should have the remedy to get the adverse findings set aside.If the accused does not get this finding expunged, he may have to carry the stigma about his character throughout his life. This would certainly result in civil consequence as it relates to his moral character." The judge rejected the contention of the Additional Public Prosecutor that an acquitted person does not have a right of appeal. "Section 397 of the Code of Criminal Procedure paves the way for an acquitted person to challenge the adverse remarks made against him,and the adverse findings made against him in the order of acquittal," the judge said.
The Judge referred to the order of a Division Bench of the court which dealt with a similar case in which it was referred to the bench to decide whether a criminal court can employ the expression 'Honourable Acquittal' while acquitting an accused. In his order, the judge said "the answer given by the Division Bench to two questions which were not at all referred, will have no binding force on me, even though I do not have much of different view than the view taken by Division Bench."
"The Division Bench has not dealt with the difference between an acquittal in simple terms and an acquittal by extending the 'benefit of doubt'." "There is a vast difference between these two. If there is no evidence at all against the accused in support of charge it is mandatory for the court to record an 'order of acquittal," the judge said.
The judge said as per the Criminal Procedure Code, there are only two provisions under which it should be a 'judgment of acquittal' and 'judgment of conviction.' Stating that the criminal courts can use the expressions 'beyond reasonable doubt' or 'giving benefit of doubt', the judge said they are not free to use these terms inappropriately when the accused is acquitted on the ground that there is no evidence against him. The judge then made it clear that the accused who is aggrieved by the adverse remarks made by the court is entitled for the appeal or revision to expunge the remarks under sections 397 and 401 of CrPC.
Source: http://www.dnaindia.com/india/report-an-acquittal-should-be-an-order-of-simple-acquittal-madras-high-court-2047034