Saturday, May 26, 2018

Intellectual Property Markets


Patents, trademarks, and copyrights are hardly new. Trademarks came first, in the 1200s in England. Patents were next, in the 1400s in Italy. Copyrights emerged in the early 1700s in England. For the United States, laws passed in the 1790s protected patents and copyrights. Trademark laws arrived in the 1870s following legislative activity throughout Europe. These are the three primary types of intellectual property (IP) that can be “registered” with governments for protection. Each are made public, and available statistics for all countries make it possible to track global activity.

Registered IP Boom: What is happening is not a surprise. There are several factors, besides globalization and competitiveness, that fuel the growth. First is the ability to monetize IP. IP used to be part of the price of a product. It still is, but it can also be sold or licensed or bartered in an increasingly liquid marketplace. Transactable IP, which began in the early 2000s, increased the size of the available market. Providers of software and services could now create many more capabilities than simply IP inventory management systems for companies.

Open innovation came of age a few years later, spurred by giants such as Procter & Gamble that set a goal to in-source 50% of their innovations from other companies. As the internet increasingly enabled global connectivity, big data and algorithmic analytics came of age. All the pieces were now in place to take a company’s IP portfolio and compare it to any company or set of global statistics.

Finally, coming full circle, this easily comparative global information spurred further growth as analysts warned companies about not keeping up with the Joneses. Geometric growth has been going on for the past five to seven years.

IP Networks: Another important growth driver are IP organizations that are not the actual governmental registration bodies. Western economic zones have assembled neighboring countries into consortiums and/or empowered agencies that oversee activities and influence country policies and legislation, such as Europe, Eurasia, the Arab States, and Africa. Asian countries appear to be taking a more solo approach.

On a larger scale, the World Intellectual Property Organization has become an increasingly important player. It was established in 1967 by the United Nations as a self-funding agency. It is located in Geneva, Switzerland, and represents 191 of 195 countries. WIPO, as it is known, is the global forum for IP services, policy, information, and cooperation. It is a great source of information on all registered IP. Get on their e-mail list and you will have your finger on the pulse.

Patents & Trademarks: There will always be regional, vertical, and other types of segment competitors, but a look at several WIPO’s global services likely portends the future of IP. WIPO offers three global registration platforms: for utility patents (PCT), design patents (Hague), and trademarks (Madrid). Users file a single “international application” directly with WIPO, which then handles the various country filings. This is a great assist for emergent countries and regions, and is also increasingly used by industrialized nations which already have plenty of infrastructure for registration and enforcement.

Copyrights: Copyrights are also increasingly being monetized. After the “free thinking” period when the internet boom began, the realization that content has value started to return. Giant companies and organizations around the globe now compete to gather and charge for access to their content. The list is long. Copyrights have a couple interesting twists. First is the ability to digitally identify every single publication, a systems capability that has been evolving since 1998.

Does it sound to you like the future of registered IP is headed to be a transactable commodity?

Friday, May 25, 2018

With IBC norms changed, Jaypee homebuyers to rerun case


Hopeful of getting a fair treatment after reclassification as financial creditors, the homebuyers of Jaypee Infratech are planning to approach the court to rerun the ongoing resolution process under the amended Insolvency and Bankruptcy Code (IBC).

The government on Wednesday approved changes in the IBC through an ordinance that gives homebuyers the status of financial creditors at par with banks in the insolvency resolution process. "Once the ordinance is promulgated upon getting President's assent, we will approach the National Company Law Tribunal (NCLT) to rerun the resolution process,".

Jaypee has failed to deliver 25,000 flats to the buyers citing lack of funds. The realtor had raised around Rs 12,000 crore from the buyers for its Wishtown housing project in Noida in the National Capital Region.

Rerunning the case would mean starting the process from the stage of invitation of fresh bids and reconstitution of the Committee of Creditors (CoC). So, even if the changes are prospective, it would not matter in this case, Rai said.

Currently, the resolution process is heavily tilted in favour of banks, whereas homebuyers have little say in it, homebuyers and lawyers feel.

Even as their contribution in most real estate projects is more than that of banks, homebuyers are unable to participate equitably, leave aside preferential treatment, rue lawyers and homebuyers.

Jaypee raised about Rs 12,000 crore from homebuyers in instalments and booking amount which was much higher than Rs 8,276 crore raised by it from the banks. However, homebuyers were offered only 30% as compared to banks which were offered 70% of the bid price of around Rs 10,000 crore earlier quoted by a company during the resolution process.

With better representation on the CoC, homebuyers hope to get this order reversed.

"This is likely to get reversed if the new bids are invited. Given that Rs 3,500 crore is required to complete the remaining 60% construction in the project, the homebuyers are likely to get 4-5% of the principal amount as delay compensation," Rai said.

However, even in this scenario, the homebuyers are looking at 20% haircut on an average instead of 42% expected earlier, experts point out.

Classification as financial creditors will allow homebuyers to have a greater say in the resolution process and protect their rights. Homebuyers will have voting rights and can now participate in the CoC meetings. Till now, they had no voting rights and were sitting outside the CoC.

A total of 66% members of the CoC can decide on a resolution process. This will allow homebuyers to insist the bidders to include delay compensation in the resolution plan.

However, "placing thousands of homebuyers on CoC could be tricky. Some of them may not come to vote, while others may have a different opinion,", one of Jaypee homebuyers.

Homebuyers will be treated at par with banks during the insolvency resolution process. However, if the resolution process fails and the company is forced into liquidation, homebuyers will be placed after the banks as realtor has given land assets as collateral.

http://www.dnaindia.com/business/report-with-ibc-norms-changed-jaypee-homebuyers-to-rerun-case-2618540

NCLAT admits banks’ petition over Jaypee Infratech land

The National Company Law Appellate Tribunal on Thursday admitted a petition filed by banks against the NCLT order which had directed Jaiprakash Associates to return nearly 760 acres of land to its subsidiary Jaypee Infratech.

A two-member bench headed by Chairman Justice S J Mukhopadhaya also issued notices to the resolution professional (RP) of the company over the petition filed by three lenders -- Axis Bank, Standard Chartered Bank and ICICI Bank. The bench fixed July 13 as the next date of hearing.

During the proceedings, the appellate tribunal observed that the adjudicating authority (NCLT) does not have jurisdiction to declare any instrument illegal.

NCLAT was hearing the appeal over the order of the Allahabad bench of the National Company Law Tribunal (NCLT), which had asked debt-ridden Jaiprakash Associates Ltd to return nearly 760 acres of land to its subsidiary Jaypee Infratech, declaring the transfer of the land as “fraudulent” and “undervalued”.

NCLT had directed JP Group’s flagship firm Jaiprakash Associates Ltd (JAL) to release and discharge interest created over the land to lenders including ICICI Bank.

The order had come on a petition filed by Jaypee Infratech’s resolution professional (RP) Anuj Jain in the NCLT seeking direction over transactions entered into by the company’s promoters creating mortgage on 858 acres of land to secure debt for JAL.

Thursday, May 24, 2018

CLAT 2018- SC Suggests To Form Nodal Agency To Examine The Grievances Of Candidates, Asks NUALS To Reply

The Supreme Court today asked Common Law Admission Test (CLAT) 2018 convenor Nuals Kochi to appoint an expert committee at the earliest to individually look into at least 251 CLAT 2018 candidates’ grievances with the conduct of the entrance exam this year.

Justices AM Khanwilkar and Navin Sinha heard senior advocate Salman Khurshid for CLAT 2018 candidate Disha Panchal and five other petitioners who had challenged the exam and asked for a stay on the results and for a fresh exam, on the ground that they suffered from precious time lost in answering the paper due to technical glitches in the conduct of the exam.

Senior advocate V Giri appeared for Nuals today and placed on record the computer “log reports” of the petitioners claiming that each of the six petitioners was compensated with extra time for the exact time lost on account of technical glitches.

Nuals also submitted that out of over 59,300 candidates who appeared for the CLAT 2018 LLB and LLM entrance exams, it has received 251 representations so far from aggrieved candidates claiming that they had suffered on account of errors and glitches in the exam, the petitioners’ counsel Anand Shankar Jha told us.

This leaves out possibly up to 2,120 other potentially aggrieved candidates, according to a Google form that had been opened up to responses by a free CLAT tutorial service.

Jha said that the court was of the prima facie view that there were indeed many glitches in the conduct of the exam and that Nuals should appoint a mechanism or constitute a committee to look into each individual grievance.

The judges asked Nuals to propose before the court tomorrow as to how soon it can constitute such a committee and what procedure the committee would follow to address candidates’ grievances.

The court also ordered a stay on the writ proceedings on before five other benches of various high courts by several CLAT 2018 candidates, i.e. before Rajasthan - Jodhpur and Jaipur, Punjab & Haryana, Madhya Pradesh and Delhi, making their outcome subject to the decision of the Supreme Court.

Additional solicitor general appeared for the ministry of human resource development (MHRD), which was also made a respondent in the case.

Jha said that the hearings in the matter will now proceed on a day to day basis and the next hearing is tomorrow.



https://www.legallyindia.com/pre-law-student/clatinsc-nuals-to-propose-mechanism-to-look-into-251-candidates-complaints-as-2000-other-unrepresentated-sc-stays-clat-2018-proceedings-in-all-hcs-20180524-9366

Supreme Court: No relief to LLB Student Short Of Attendance Due To Pregnancy.


The Supreme Court on Wednesday refused to grant attendance relaxation to a second-year student of the LL.B course of Faculty of Law, University of Delhi (DU) who had missed college due to her pregnancy.

The Petitioner, Ms. Ankita Meena had sought a direction to DU to permit her to appear in the IV semester LL.B Examination. She could not meet the requisite 70% attendance criteria, having missed almost 2 months of the semester due to her pregnancy.

The Supreme Court vacation bench of Justices A. M. Khanwilkar and Navin Sinha declined interim relief of being permitted to sit for her fourth semester examination scheduled at 2 PM on Wednesday.
The bench was hearing the SLP preferred by Ms. Meena against the May 15 judgment of the Delhi High Court, wherein the Single Judge had placed reliance on University of Delhi v. Vandana Katari and Sukriti Upadhyay v. University of Delhi, besides Rule 12 of the BCI Rules of Legal Education, in refusing to grant her attendance relaxation.

Dismissing the SLP, the bench on Wednesday noted, “even maternity leave was not applied for… the objective of stipulating rules is to secure a sense of discipline…we cannot direct at 1 PM that a candidate may be allowed to take the examination at 2 PM...”

The bench, however, granted liberty to the petitioner to approach the Division Bench of the Delhi High Court. At an earlier stage, the bench had signified its consent to an arrangement that may be effected in this behalf with the acquiescence of the Respondent University.

In her petition, Ms. Meena had claimed a contravention of Rule 2(9)(d) of Ordinance VII of Chapter III of Delhi University Act of 1922, of her Fundamental Rights under Articles 19(1)(g), 14 and 21, her DPSP under Article 42 and the State’s Fundamental Duty under Article 51(c) [in the light of India being a signatory to the Convention on the Elimination of All Forms of Discrimination against Women], besides the provisions of the Maternity Benefit Act.

She also referred to the landmark judgment in Air India v. Nargesh Meerza. The relevant extract of the said Rule 2(9)(d) reads as follows:

“In the case of a married woman student who is granted maternity leave, in calculating the total number of lectures delivered in the College or in the University, as the case may be, for her course of study in each academic year, the number of lectures in each subject delivered during the period of her maternity leave shall not be taken into account:”

The High Court had, however, noted that the position had been settled by a decision by the Division Bench of the Court in the case of University of Delhi & Anr. v. Vandana Kandari & Anr., wherein the Court had held that maternity leave cannot be put in a different compartment for the purposes of relaxation of attendance. The Court had further highlighted the fact that LL.B. is a “a special professional course where no relaxation can be granted contrary to the Bar Council of India Rules, which specifically governs the field.” It had then dismissed the Petition, observing, “In my considered view, once Rule 12 of Rules of Legal Education of the Bar Council of India prescribes a mandatory attendance of 70% in each semester of LLB, no reliance can be placed on Rule 2 (9) (d) of Ordinance VII of Chapter III of Delhi University, which is a general provision that does not deal with a professional course like LLB.”

Wednesday, May 23, 2018

Understanding Intellectual Property Rights


Anyone involved in software development today must have a keen understanding of the ins and outs of intellectual property rights, including copyright laws and patent development. But the area is so vast that it can be difficult to narrow down the most important points to start with.

Here we’ll outline five key areas that developers and others in the software industry should have a clear understanding of. This list may be especially useful for independent entrepreneurs who are focused on developing their own products or who are newcomers to the tech industry in general.

1. Trademarks
Trademarks protect your name, domain, images, and everything related to product design. You must register your trademark to ensure full and complete legal protection of your brand.

Quite simply, anyone who develops a piece of software should put in place the protection mechanisms that will solidly protect your brand name even before they go into the development process and especially before they partner with anyone else.

It’s important that software developers have a contemporary understanding of how trademarks work— not only to protect themselves but also to be aware of the rights and responsibilities of others that you may end up working with.

2. Open Source Agreements
One of the areas that can get particularly sticky when it comes to intellectual property is in the realm of purposefully shareable intellectual property like open source code. The main thing to know is that this type of software is actually copyrighted and developers are required to use it in accordance with specific licensing.

If a developer releases the finished work as open-source, there are different types of open source licenses, which the developer should be familiar with ahead of time. Depending on the license, there will be different permissions granted to the users of the software. However, developers that are creating software programs with the intention of having it end up as a part of an open source platform don’t need to abide by licensing rules.

3. Author Versus Owner
Ownership determination can be complex and especially in the case of open source software. However, in terms of employee-employer relationships, so long as someone is an employee, anything that they develop is not their own – the employer will always have the copyright, and this is the case no matter what role the developer plays in the development process.

If the developer is an independent contractor, they may be considered the owner unless there is a legally binding contract outlining other terms.

4. Trade Secrets
It may seem unethical to some who are focused on knowledge-sharing for the benefit of innovation to keep things a secret but sometimes it’s necessary since other forms of copyright will be both public and have certain limitations.

If a developer finds themselves with a highly original and valuable idea, it may be that they want to keep it a secret in order to maintain full control over the source code without risk of anyone copying it. A protection program will include confidentiality agreements, password protection and the like.

Trade secrets can be kept in perpetuity, but they do require that extensive steps be taken to ensure privacy – which of course gets more complicated depending on the size of a team.

5. Patents
A patent typically is in place for 20 years. Developers can get patents on software, but only if the invention is extremely original – in the software space this will pertain to the software itself (e.g., applications) and/or the algorithm incorporated in the design. Patents also require that you make the details of your invention public.

In Conclusion
All developers need to have a clear understanding of their rights in relation to any partnership employment scenario before they actually enter into a work agreement or even start developing their own unique product line.


https://www.lianapress.hk/releases/biotech/5-things-every-developer-must-know-about-intellectual-property-rights.html

Trademark Law - No confusion between words ‘Blacksmith’ and ‘Goldsmith’

Finding no case of infringement and passing off of mark ‘Blacksmith’ by mark ‘Goldsmith’, Delhi High Court has dismissed the suit for permanent injunction. It noted that dictionary meanings of words were different and they were unlikely to be remembered by breaking into two parts, i.e. Black and Smith or Gold and Smith.
The Court in the case of Jaideep Mohan v. Hub International Industries it was held that a consumer of the products of the plaintiff and the defendants was likely to remember the said products by the meaning thereof, i.e. of the composite word – ‘Blacksmith’ and ‘Goldsmith’, which translate in Hindi language to ‘Lohar’ and ‘Sunar’, respectively.
Distinguishing a number of judgments, it held that it was highly unlikely that a consumer of alcoholic beverage in Hindi speaking belt would get confused. Court in this regard also noted that there was no confusion on account of packaging or shape of bottle/container.
Dismissing the suit, the Court was of the opinion that the suit was not required to be put through the rigmarole of trial, when no case of infringement or passing off was found even at that stage.


Sunday, May 13, 2018

Jaypee Group Offers 2,000 Shares For Free To Each Homebuyer

Jaypee group has offered 2,000 equity shares of Jaypee Infratech Ltd. for free to each homebuyer as part of its Rs 10,000 crore proposal to revive the bankruptcy-hit real estate firm, sources said.
Earlier this week, Jaypee group promoter Manoj Gaur made an offer of over Rs 10,000 crore before the lenders of Jaypee Infratech to protect the interest of all stakeholders including financial creditors, homebuyers and minority shareholders.
Jaypee Infratech, a subsidiary of Jaypee group’s flagship firm Jaiprakash Associates, had in 2007 started development of about 32,000 flats in Noida, of which it has delivered 9,500. It has applied for occupancy certificates to hand over 4,500 flats more.
According to sources, Jaypee group in its fresh proposal has offered 2,000 shares each to every homebuyer on first registration. About 4.5 crore shares are estimated to be offered at nil consideration. That apart, the group proposed to bear 50 percent of stamp duty on behalf of the home buyers on first registration, they said adding the company plans to deliver all apartments in the next 42 months.
Jaypee Infratech will also pay penalty to homebuyers as per the agreement and India’s new real estate law RERA, sources said.
Jaiprakash Associates has already deposited Rs 750 crore with the Registry of the Supreme Court and the amount would be utilised for refund to home buyers.
Yesterday, lenders of Jaypee Infratech rejected a Rs 7,350 crore bid by Lakshadweep, the highest bidder for the company, as they found it inadequate. The decision was taken at a meeting of the committee of creditors that was called to decide on the bid received from Lakshadweep, whose offer was ranked higher than the one presented by Adani Group.
Last year, the National Company Law Tribunal had admitted the application by an IDBI Bank-led consortium, seeking resolution for Jaypee Infratech under the Insolvency and Bankruptcy Code.
The tribunal had appointed Anuj Jain as Interim Resolution Professional to manage the company’s business.
Later, Jain invited bids from investors interested in acquiring Jaypee Infratech and completing the stuck real estate projects in Noida and Greater Noida. 
Consequently, Lakshadweep emerged as a front runner to acquire Jaypee Infratech with Rs 7,350 crore bid.

NCLT suggests IBBI review insolvency code regulations


The National Company Law Tribunal (NCLT) has suggested to IBBI that there is a need to review the insolvency code regulations to ensure that they are not "misused or misinterpreted". 

It also said that the resolution professional (RP) should be competent and independent so that there are no interruptions in the process which lead to delays in disposal of insolvency cases. 

Besides, it has said the claims of operational creditors are neglected or ignored as the Committee of Creditors (CoC) has supremacy of the financial creditors (banks and financial institutions) who have control over the entire process. 


Nobody is taking care of operational creditors' claim, said the NCLT Kolkata Bench in its order passed last week on the Binani Cement.

"It is time to recognise their voice also in the committee of creditors," it said, suggesting changes to the Insolvency and Bankruptcy Board of India (IBBI). 

In the 60-page order, the tribunal has also raised concern about the functioning of RPs, saying it has been receiving several pleas from stakeholders on issues such as transparency, arbitrariness and delays in the process. 


"The adjudicating authority (NCLT) is facing too much interruption from various stakeholders. Till date we have never come across any frivolous application. All come with a genuine grievance. All challenge the independence of the resolution professional and lack of transparency, competency and arbitrariness in the matter of resolution process," said NCLT. 

While citing Binani Cement case, the tribunal said: "In the case in hand, 12 applicants came forward ...for not following the process mandated under the code by the resolution process. The arbitrary way of dealing with the cases has always led to interruptions and also caused delay in disposal of cases." 

According to NCLT, while there is a need for reforming the regulations of the insolvency code to ensure that it is not misused or misinterpreted, there can not be any question that independence and competency of RPs are essential for preserving the objective of the code in a transparent manner leaving no room for interruption from any corner. 

The NCLT Bench of Member-Judicial Madan B Gosavi and Jinan K R said: "Hopefully, we believe that IBBI take note of all the above observations and do the needful review of the code and regulation." 

Referring to the Binani Cement case, NCLT said here the RP is a CA by profession and he failed to take business decisions to run the corporate debtor on his own. He managed to run the company by appointing about 22 representatives, who are from his own partnership. 


A resolution professional, like the RP in a case of this nature, needs some basic training for handling the resolution independently, efficiently and tackle the multiple questions from different stakeholders, said NCLT order, passed on May 2. 

"Whenever a question arises, even if answerable by the RP independently or with advice from his advisors, he comes to adjudicating authority... He shifts that burden too to the adjudicating authority," the bench said. 

https://economictimes.indiatimes.com/news/economy/policy/nclt-suggests-ibbi-review-insolvency-code-regulations/articleshow/64052545.cms

Complaint Of Domestic Violence Can Be Filed Even After Divorce: Supreme Court

A woman can lodge a complaint under the domestic violence law against the excesses committed by her husband even after the dissolution of marriage, the Supreme Court has said.

The top court refused to interfere with the order of the Rajasthan High Court which held that the absence of subsisting domestic relationship in no manner prevents a court from granting relief to the aggrieved woman.

The high court had passed the order while adjudicating a matrimonial dispute.

A bench of justices Ranjan Gogoi, R Banumathi and Navin Sinha dismissed the appeal against the high court verdict, saying it was not inclined to interfere with the order in the facts of the case.

It was contented that husband-wife relationship often ends on an acrimonious note and if the provisions of the Act were allowed to be used retrospectively, then it would further increase the acrimony and rule out the possibility of any compromise.

He said that legislature's purposive interpretation has to be kept in mind while interpreting any provisions of the law.

The bench, however, refused to agree and declined to interfere with the high court order in the facts of the case.

The high court had held on October 30, 2013 that the subsistence of marriage or domestic relationship was not a condition precedent for an aggrieved person to invoke the protection orders and other reliefs under the provisions of the Act.

"If the aggrieved person had been in domestic relationship at any point of time even prior to coming into the force of the Act and was subjected to domestic violence, the person is entitled to invoke the remedial measures provided under the Act,

The high court had said cited an example saying that even after the dissolution of marriage between the parties, if an ex-husband attempts to commit an act of violence such as entering the place of employment of the divorced wife, trying to establish contact with her or causing violence to her dependents or other relatives, she is not precluded from seeking protection orders under the law.

If the divorced husband attempts to dispossess the woman from the shared household or property jointly owned, she can approach a court for appropriate relief.



https://www.ndtv.com/india-news/complaint-of-domestic-violence-cruelty-against-can-be-filed-even-after-divorce-says-supreme-court-1851293

Friday, May 11, 2018

SC stays verdict on pleas challenging validity of Aadhaar: Top 5 points

A five-judge constitution bench of the Supreme Court headed by Chief Justice of India (CJI) Dipak Misra on Thursday reserved its judgement on the Aadhaar matter. Several appeals were filed challenging the constitutional validity of Aadhaar. Supreme Court judge Justice D Y Chandrachud, while hearing the petitions challenging the Aadhaar scheme's constitutional validity, on Wednesday recalled a personal experience of how his mother, who was suffering from Alzheimer's disease, had faced difficulty in authentication to get her pension.
Justice Chandrachud is part of the five-judge Constitution Bench, headed by Chief Justice of India Dipak Misra, which is hearing a batch of petitions challenging the constitutional validity of the Aadhaar scheme and its enabling law of 2016.

A battery of lawyers including Attorney General K K Venugopal, who represented the Centre and senior advocates like Kapil Sibal, P Chidambaram, Rakesh Dwivedi, Shyam Divan, Arvind Datar, Rakesh Dwivedi had appeared for various parties.
The constitution bench also comprised Justices A K Sikri, A M Khanwilkar, D Y Chandrachud and Ashok Bhushan.
During the arguments spread over four months, the Centre had strongly defended its decision to seed Aadhaar numbers with mobile phones, telling the top court that it could have been hauled up for contempt if the verification of mobile users was not undertaken by it.
However, the court had said that the government had misinterpreted its order and used it as a "tool" to make Aadhaar mandatory for mobile users.
Former Karnataka High Court judge Justice K S Puttaswamy and other petitioners had challenged the constitutional validity of Aadhaar.
The court had also not agreed with the government's contention that the Aadhaar law was correctly termed as a Money Bill by the Lok Sabha Speaker as it dealt with "targeted delivery of subsidies" for which funds came from the Consolidated Fund of India.
On May 3, the Centre had strongly defended its decision to seed Aadhaar numbers with mobile phones, telling the top court that it could have been hauled up for contempt if the verification of mobile users was not undertaken by it. However, the court had said that the government had misinterpreted its order and used it as a "tool" to make Aadhaar mandatory for mobile users.
The petitioners had referred to the technical experts' views on the technical aspect of the Aadhaar architecture and said that real-time surveillance of citizens was possible.
Earlier, the court also did not agree with the government's contention that the was correctly termed as a Money Bill by the Lok Sabha Speaker as it dealt with "targeted delivery of subsidies" for which funds come from the Consolidated Fund of India.
1) SC reserves judgement on pleas challenging Aadhaar: The Supreme Court on Thursday reserved its verdict on a batch of petitions challenging the constitutional validity of Aadhaar and its enabling 2016 law.
A five-judge headed by Chief Justice directed all the parties concerned to file their written submissions to put forth their case.
The judgement was reserved after a marathon hearing which went on for 38 days spanning four months.
2) Justice Chandrachud's mother had to authenticate ID every month for her pension:failures could create problems for those in need and some solution had to be found to address the issue, said the Bench, also comprising Justices A K Sikri, A M Khanwilkar, and Ashok Bhushan. Recalling his experience, Justice Chandrachud said "my mother, who was suffering from Alzheimer's disease was entitled to family pension being the wife of a former Chief Justice of India (late Justice Y V Chandrachud)".
"She had to give a for authentication.

I recall, every month the bank manager or his representative would come home and affix her thumb print on certain documents and only then could she get the pension," Justice Chandrachud said. "So it (authentication) is a serious issue. It's not largesse. It is not charity... we have to find answers for these problems," he said, adding that there was a class of needy people who may not get the benefits due to authentication failures.
3) Senior advocate says 90-year-old woman who is unwell being threatened by bank over Aadhaar: The apex court judge was responding to the arguments of senior advocate Shyam Divan, appearing for former High Court judge Justice (Retd) K S Puttaswamy, who said a 90-year-old woman suffering from various ailments is being threatened that her bank account could be closed for non-authentication by Aadhaar.
Divan said that through that bank account, she was getting her pension and she uses that money for her treatment as she has no one else to look after her.
"There are numerous cases where the failures of the elderly, people suffering from any disease or physical disability, leads to to those otherwise entitled to it," Diwan said.
He said in many villages, young people have now migrated to cities or nearby towns and only the elderly residing there were dependent on their pension or other grants. But due to failure, they were not getting the benefits.

4) Senior advocate tries to poke holes in World Bank report praising Aadhaar: Divan sought to assail a World Bank report which had praised the Aadhaar project and which was relied upon by the government to bolster its case for the 12-digit unique identification number. He said the World Bank had partnered with a private entity for preparing the report titled 'Identification for Development'.
Divan claimed that the same private entity was also the company with which had partnered to facilitate Aadhaar.

5) Advocate Divan says Aadhaar authentication should not be made compulsory for certain schemes: Divan told the apex court that there were 144 notifications issued by various ministries and departments of the government which covered 252 schemes. The senior lawyer concluded his rejoinder arguments saying that essential government schemes that apply to children or relate to citizen's rehabilitation, food, health, and nutrition should be excluded from the requirement of Aadhaar authentication.

http://www.business-standard.com/article/current-affairs/aadhaar-case-sc-judge-recounts-ailing-mother-s-pension-hurdles-top-points-118051000187_1.html

Delhi High Court Grants Damages Worth INR 10 Lakhs For Infringement Of The Mark Ferrero Rocher

Delhi High Court in the case Ferrero Spa & Nr vs M/S Ruchi International & Anr [CS(COMM) 76/2018] has ruled in favor of the Ferrero Spa (hereinafter referred to as the 'Plaintiffs'). A suit was filed for permanent injunction and related reliefs against the infringement of the Plaintiff's product and trade dress of FERRERO ROCHER chocolate. Defendant no. 1, who was an importer and marketer of chocolates under the brand name 'Golden Passion' settled the matter amicably outside Court, however, Defendant no. 2, manufacturer of the chocolates under the mark Golden Passion in China, did not appear before the Court, and an ex parte interim order was passed against him. Despite service of the same, Defendant no. 2 had not ceased the sale of the impugned product. The Court found in favor of the Plaintiff and imposed costs and damages worth INR 10 Lakhs (USD 14989 approx.).

Brief Background

In the above case, the Plaintiff is a part of the Ferrero Group, founded in 1946. Being ranked amongst the 4 biggest confectionary producers worldwide, it is the most reputable company in the world, according to the Reputation Institute Survey of 2009, as reported in the Economist and Forbes Magazines. However, the Plaintiffs conduct their business in India officially through Ferrero India Private Limited (hereinafter referred to as Plaintiff No. 2), incorporated in the year 2008.
During the pendency of the suit, there was a settlement reached between the Plaintiff and the Defendant No. 1, an importer and marketer of chocolates under the brand-name Golden Passion in India which are also look-alikes of Plaintiff's chocolates sold under the FERRERO ROCHER trademark. Vide the settlement, a compromise decree was passed vide order dated May 26, 2016. Whereas, none appeared on behalf of Defendant No. 2, which is the entity manufacturing and exporting chocolates under the brand Golden Passion to India, the suit proceeded being treated ex- parte against him.

Major Contentions by the Plaintiffs

  1. The Plaintiff's mark FERRERO ROCHER has been declared as a well-known mark by the Delhi High Court vide order dated March 13, 2004 in CS (OS) 404/2012.
  2. Further, the Plaintiff's contend that the label, shape and other characteristic features of the packaging of the Plaintiff's 'FERRERO ROCHER' chocolate specialties, which constitute its trade-dress are entitled to protection as being well-known marks as they satisfy the criteria mentioned in Section 11 (6) of the Trade Marks Act, 1999. The chocolate products sold by the Defendants and the packaging in which they are sold are identical to that of the packaging of the Plaintiff's FERRERO ROCHER chocolate specialties and the striking similarity between the Plaintiff's FERRERO ROCHER chocolates and those of the Defendant's has been enumerated in the plaint.
  3. Such misuse by the Defendants of the identical and/or deceptively similar trademarks, trade dress creates a mistaken impression in the minds of consumers that:

    • the Defendants products/services emanate from the Plaintiff's themselves;
    • the Defendants are permitted and authorized users of the Plaintiff's trademark; and
    • there is a nexus between the Defendants and the Plaintiffs.
  4. The Court vide order dated March 26, 2014, had restrained the Defendants from

    • manufacturing, selling, offering for sale, advertising, directly or indirectly, dealing in any manner with the impugned Golden Chocolate product or any other product leading to infringement of the Plaintiff's trademarks and trade-dress;
    • using the trade-dress, packaging, color combination, layout, get-up designed to imitate the Plaintiffs' FERRERO ROCHER trademark and trade-dress leading to dilution of the Plaintiff's trademark and trade-dress and unfair competition vis-avis the Plaintiff's business under the FERRERO ROCHER trademarks and tradedress.
  5. Even though, an injunction order was passed against Defendant No.2, it is still continuing to sell its Golden Passion chocolates in India, as is evident from the documents. The Defendant No.2 is continuing to sell numerous products which are a look alike of the FERRERO ROCHER chocolates under the brand ROWANSA and as part of its Golden Series of chocolates.
  6. The acts of the Defendants in adopting and using the identical/deceptively similar impugned mark and dress in respect of identical goods has caused and will continue to cause irreparable damage and loss to the Plaintiffs business. Further, the impugned mark which forms a part of their trading name, infringes the rights of the Plaintiffs under Section 29 (5) of the Act. The Defendant No.2 is rather dealing in the goods which are identical to the goods of the Plaintiffs.
  7. It was initially submitted by the Plaintiffs that the Court must also grant punitive damages taking into account the mala fide conduct of the Defendants, which is clearly not proportional to the quantum of actual damages that the Plaintiff has proven through documentary evidence filed in the suit on the following factors, i.e., Defendant No.2 despite service, chose not to contest the present proceedings; and it has been in contempt of the injunction order dated May 09, .2014, and has been exporting infringing chocolates to India and making them available for sale through online websites.

Contentions by the Defendants

The Defendants did not file any written statement in the suit. They also failed to admit or deny the documents of the Plaintiffs, and thus the Court proceeded to decide the case ex parte.

Observations by the Court

The Plaintiff has suffered immense loss to goodwill and reputation and hence, is entitled to a grant of damages not only in terms of compensatory damages but also in the form of punitive damages.

Held

The Court held that since Defendant No.2 reclused itself from the proceedings, it cannot be permitted to enjoy the benefits of evasion or covert priorities as they have been selling the goods and continuing to infringe the Plaintiff's mark. The Court passed a permanent injunction in favour of the Plaintiff and awarded damages to the Defendant No.2. where a decree for a sum of INR 10 Lakhs (USD 14989 approx.) was passed against Defendant No.2, on account of infringing the registered marks, trade dress and violating the interim order. The Plaintiffs were also entitled to interest @ 10% per annum on the damages so awarded from the date of filing of the suit till the date of realization. Proportionate costs of the suit were also awarded to the Plaintiffs and against the Defendant No.2.


http://www.mondaq.com/india/x/696092/Trademark/Delhi+High+Court+Grants+Damages+Worth+INR+10+Lakhs+For+Infringement+Of+The+Mark+Ferrero+Rocher

Patanjali Granted Injunction in Trademark Infringement Case by Delhi High Court

Delhi High Court provided some relief to homegrown fast moving consumer goods company Patanjali by passing an injunction order against companies who were wrongfully using their trademark “Patanjali”.

Facts and Proceedings of the case

Patanjali Ayurved Limited the homegrown fast moving consumer goods company is owned by Yoga guru Ramdev. Patanjali was founded in January 2006 and is currently the fastest growing fast moving consumer goods company in India. Its turnover in the financial year 2016-2017 was estimated to be over rupees ten thousand crores. Patanjali creates more than 900 products and claims that they only use natural and Ayurvedic herbs. Baba Ramdev in an interview revealed that entire profit of Patanajli goes to charity. It filed a suit for trademark infringement against four firms and a trust. They contended that four companies and a trust are wrongfully using their registered trademark. Patanjali Ayurved limited through their advocates Simranjeet Singh, Rohan Ahuja and Sonali Dhir of Athena Legal wanted a permanent injunction against the infringers and further claimed that infringers were passing off their product as that of the company and engaging in unfair competition. The plaintiff in its suit also alleged that defendants were claiming to do so under a valid authorization of the trust named Maharishi Patanjali Vedic Foundation.

The decision of the Court

The Four firms namely Karamveer Ayurveda, Dr. Zee Biotech, Dhatri, and Diwai Gramodyog Sewa Sansthan have been prevented from manufacturing, selling or advertising and marketing goods or services bearing the mark or word Patanjali.
Single judge Bench of Delhi High Court comprising of Justice Rajiv Sahai Endlaw passed the injunction order and noted that Patanjali Ayurved has made out a prima facie case for grant of an ex-parte order in its favour restraining the four firms and the trust from infringing its trademark. Court also issued a notice to all the five defendants asking them to file their reply to the plea by 16 May which is also the next date of hearing.

Learning of the case

From this case, we learn that intellectual properties of foreign brands are well protected under the existing Intellectual Property Rights Law of India. Gone are the days when people used to wait for days together for a minor remedy. Courts in India are fully capable of granting quick remedies to the ones in need be it a big multinational or a small organization.



http://libertatemmagazine.com/from-the-courtroom/patanjali-granted-injunction-in-trademark-infringement-case-by-delhi-high-court/