Month: October 2019

The term unfair labour trade practices, though has been heard very much as the part and parcel of labour laws throughout the world, is still a grey area where very little thought and study has been put into and the said statement is of high relevance, when one looks into the wide expanse of the labour market in India, undoubtedly one among the largest in the world, half of which still comprises of labourers from unorganized sector.

The need for an exclusive legislation on unfair labour practices has been long felt within the country for a long time. However, the approach of the Parliament in implementing the said need has been in a state of apathy. This is evident from the fact that the proposed amendment to the Indian Trade Unions Act, 1926 through the Amendment Act, 1947 wherein certain acts were specified as unfair labour practices has not yet been brought into force even after the passage of half a decade. There seems to be an obstruction for the legislature of the largest democracy of the world to enact a specific legislation regarding unfair labour practices, an impediment which is still known to none.  The said write up is emphasizing on the need of bringing in an exclusive legislation with regard to unfair labour trade practices and also discusses in detail, the possible effects, enactment of such a law will have on the labour economy of the country.

“The problem of labour law has become the problem of an entire economic order. A renovation of labour law is no longer possible without a renewal of that economic order … The social requirements of labour law are no longer compatible with the individual character of the economic system.”

 The increasing number of unfair labour practice cases is a subtle but an increasing threat to the national labour policies. Hence it is necessary that the problem is being properly addressed to. When such an observation is turned against a country like India, where historically itself the concept of collective bargaining has not been as effective as in other nations, the subject invites a large amount of thought and action to be put into it.

Since the labour regime of our country has been invariably indebted to its British counterpart, the effects that the labour laws of UK felt during the economic crisis was felt even in the colonial India and from there the labour laws of our country have not regained its balance that it lost due to the flaws in the policies that were adopted by its government in the dawn of its independence. Collective laissez-faire did not survive the strong economic currents which swept through the UK system of labour relations in this period. Being in the clutches of a colonial power meant that the repercussions of what happened in UK also happened in India. Collective Bargaining never was a popular concept in the few industries that we had during the colonial regime.

Hence, it can be understood that there was an inherent flaw in the labour policies of our country from its beginning. Despite this, the industrial jurisprudence in our country evolved at a rapid pace to ensure that the country moved correspondingly with the developments of the world. This can be understood by the fact that the significance of the concept of unfair labour trade practices was realised by the time of 1950, barely three years into the implementation of it umbrella legislation- The Industrial Disputes Act, 1947.

However, from there though the labour jurisprudence of our country has evolved in various fronts, the growth of the concept of unfair labour trade practices as such and its interpretation has seen very less or almost no major changes. The only major change with respect to unfair labour trade practices in our country has been the inclusion of the said concept in the parent labour legislation of the country. The rich body of case law that has been developed under the Maharashtra law stands testimony to the fact that that law is frequently used to curb unfair labour practices, in contrast to the virtually non-existent litigation of a similar nature under the Industrial Disputes Act. However, through the research that was carried out in the preceding chapters it was able to conclude that the concept of unfair labour trade practices as provided in the Industrial Disputes Act fails to deal with the subject in a comprehensive manner. Therefore the need of an exclusive legislation on unfair labour practices was felt. On the basis of the study that was carried out it was  found out that;

• Change in India’s labour policy occurs in a public realm, accessible to ordinary citizen and subject to public debate. Hence, any flaws, if present in the new legislation that has to be implemented will be cleared of then and there. 
• A new legislation if properly brought in and implemented will administer a system that will be able to entail every aspect of unfair labour trade practices. When this is effectively carried on, collective bargaining too will obtain a significant place in the industrial arena of our country. The law that will be produced by the new enacted legislation and its decisions will let the parties know what is expected of them thereby reducing the magnitude of litigation that is piling up in our courts regarding unfair labour trade practices.
• By enacting a new legislation and through it an administrative body like does not mean that it is the highway to Utopia. The problem within the present statutory framework is that it there is no amount of creative thought or innovation going in to work a revolution in labour relations in the country. However, the enactment and development of a new statute and remedies, is to suggest that an exclusive legislation will provide us something extra than the present Act.
• As noted earlier, the measure of success of the implemented Act will have a direct impact on Collective Bargaining. The acceptance of a newly established system will increase the acceptance of collective bargaining, there by bridging a gap that was present on the labour legislation of our country from its inception.

All the concluding points, if summed up together will reveal that the enactment of a law on unfair labour trade practices is necessary not only to have an all encompassing law dealing with the subject of unfair labour trade practices but also to makes sure that the existing glitches in our statutory framework are dealt with properly.

Well-known trade and service marks enjoy in most countries protection against signs which are considered a reproduction, imitation or translation of that mark provided that they are likely to cause confusion in the relevant sector of the public. Well-known marks are usually protected, irrespective of whether they are registered or not, in respect of goods and services which are identical with, or similar to, those for which they have gained their reputation. In many countries, they are also, under certain conditions protected for dissimilar goods and services. It should be noted that, while there is no commonly agreed detailed definition of what constitutes a “well-known mark, countries may take advantage of the WIPO Joint Recommendations on the Protection of Well-Known Marks.

Many countries protect unregistered well-known marks in accordance with their international obligations under the Paris Convention for the Protection of Industrial Property and the Agreement on Trade-Related Aspects of Intellectual Property Rights (the TRIPS Agreement). Consequently, not only big companies but also SMEs may have a good chance of establishing enough goodwill with customers so that their marks may be recognized as well-known marks and acquire protection without registration. It is, nevertheless, advisable to seek registration, taking into account that many countries provide for an extended protection of registered well-known marks against dilution (Art. 16.3 TRIPS), i.e., the reputation of the mark being weakened by the unauthorized use of that mark by others.

You should be aware of the fact that a number of trademark laws merely implement obligations under Article 16.3. of the TRIPS Agreement and protect well-known registered trademarks only under the following conditions:

• that the goods and services for which the other mark is used or is seeking protection are not identical with or similar to the goods for which the well-known mark acquired its reputation
• that the use of the other mark would indicate a connection between these goods and the owner of the well-known mark, and
• that his interests are likely to be damaged by such use.

In order for a mark to be considered to be a well-known mark, it is sufficient that the mark is well known in at least one relevant sector of the public. It is not permitted to apply a more stringent test such as, for example, that the mark be well known by the public at large. The reason for this is that marks are often used in relation to goods or services which are directed to certain sectors of the public such as, for example, customers belonging to a certain group of income, age or sex. An extensive definition of the sector of the public which should have knowledge of the mark would not further the purpose of international protection of well-known marks, namely to prohibit use or registration of such marks by unauthorized parties with the intention of either passing off their goods or services as those of the real owner of the mark, or selling the right to the owner of the well-known mark. 

The protection which should be granted to well-known marks in application of the Provisions is protection against conflicting marks, business identifiers and domain names. The Provisions do not apply to conflicts between well-known marks and geographical indications or appellations of origin. However, the Provisions constitute a minimum standard of protection, and Member States are of course free to provide for broader protection.

A well-known mark is entitled to protection by a Member State at least as of the time when the mark has become well known in the Member State. This means that a Member State is not obliged to protect an “internationally” known mark if that mark is not well known in that State, or the mark is known albeit not well known. However, as expressed by the words “at least,” protection may be granted before a mark has become well known. Cases involving the protection of a well-known mark very often involve an element of bad faith. In such cases, ad faith should be considered in balancing the interests of the parties involved in cases concerning the enforcement of well-known marks. In the case of use of a conflicting mark, the time period of at least five years must be calculated from the moment from which the owner of the well-known mark had knowledge of the conflicting use.

It follows that there is no obligation to prohibit the use of a mark which is in conflict with a well-known mark where the owner of the well-known mark has knowingly tolerated such use during at least five years. The question of whether knowledge by a licensee of the use of a conflicting mark is attributable to the owner of the well-known mark is not dealt with by this paragraph and has, consequently, to be decided under the applicable law. A potential problem for the owner of a well-known mark could be a situation in which a mark which is conflict with a well-known mark was registered in good faith but never used. This situation will, in most cases, be taken care of by provisions under national or regional laws providing that the registration of a mark which has not been used for a certain period of time becomes liable for cancellation. However, if such a use requirement does not exist, a situation is conceivable in which a mark which is in conflict with a well-known mark has been registered in good faith but has never been used and had therefore not attracted the attention of the owner of the well-known mark. 

Indian Judiciary on Well-Known Trademarks

The Trademarks Act, 1999 protects the well-known marks at two level, i.e., against the registration of any similar marks and against the misuse of well-known marks.

Rolex Sa v. Allex jewellery Pvt. Ltd. & Ors. (2009 (41) PTC 284 Del

In this case the plaintiff brought an action against the defendant so as to restrain them from dealing in artificial jewellery or in any product bearing the trade name ROLEX. In the said case the, Court while invoking Section Section 2(z) (g) was of the view that the segment of the public which uses the watches of the category/price range as the watches of ROLEX (plaintiff) is a well-known trademark. The said segment of the public if comes across jewellery/artificial jewellery also bearing the trademark ROLEX is likely to believe that the said jewellery had a connection to the plaintiff. The court considered the provisions of Section 11(6) of the Act and opined that “upon testing the trademark of the plaintiff on the touchstone of the ingredients of the said provision also, I find the said trademark of the plaintiff to be satisfying the test of the well-known trademark.”

Indian Shaving Products Ltd. v. Gift Pack and Anr. (1998) PTC 698 Del

The Delhi High Court passed the judgement in favour of the plaintiff. In the said case the factor determining the reputation of a mark under Section 11(6) i.e. the duration, extent and geographical area of any use of trademark was dealt with. The defendants in the case alleged that the plaintiff has used the trademark ULTRA for a very short period and hence could not have acquired the necessary goodwill and reputation during the said period. However, the court while determining the facts of the case observed that the plaintiff had achieved high sales and advertised heavily thereby eliminating the requirement of long duration of sale.

The observation of courts in various cases indicate that the Indian Judiciary has been flexible in interpreting the laws relating to well-known trademarks and has time and again considered factors like spillover effect, trans-border reputation, honest and concurrent use, extensive use and advertisement etc. for the purpose of according special treatment to well-known marks.

The criminal justice system of a nation can only be as strong and efficient as the statutes governing such law are. The statutes that form the backbone of such system can be divided into two sub-categories: the substantive and the procedural. The Indian Penal Code forms the majority of the former category. With the IPC being the statute used that defines the offence and prescribes the punishment for such offence, it is one of the most important pieces of legislation. Not only this, it has also been deemed to be one ofthe best drafted legislations that India has. The IPC celebrates 150 years of being in the Indian Justice System, being accepted into multiple jurisdictions without one major amendment.

Being a traditional law subject, the Indian Penal Code is normally taught to law students at the very beginning of their course. It is a part of the foundation of their knowledge, and is a prerequisite for other subjects such as the Code of Criminal Procedure, the Indian EvidenceAct, etc. However, the Indian Penal Code is also one of the longer subjects, owing to 511 sections to study and analyze. No matter how much one learns in class, there always seems to be few landmark cases that seem to have missed out. The subject is highly interesting, and there is much to learn for those who are interested in the depths of the subject. It is also highly complex in nature, and thus requires a high level of knowledge and information in order to master this subject.

Enhelion has compiled a certificate course where in each chapter of the Indian Penal Code is discussed in detail. Right from analyzing the core components of each provision, to their provisos and the landmark judgments involved herein, this course gives the student an in-depth knowledge, which will be useful in the life of a litigant.

There is a reason that people say “It is best you consult a lawyer on this matter as soon as possible” whenever there has been an injury to a person. It is common knowledge that one cannot file acomplaint on a matter that happened a decade ago, as there is alimitation that is put on a person’s right to file a suit. Suchlimitation is governed by the Limitation Act, 1963. It is the first question that a lawyer faces when filing a lawsuit regarding the same, at what time does the statute of limitations run out? Suchlimitations are put for manifold reasons, the primary one being to encourage promptness in the minds of the public, and to ensure that the suit is brought when it is fresh and the witnesses can accurately remember what exactly had happened. Another reason for doing so is to relieve the defendants of the fear and apprehension of a perpetual law suit.

Another important aspect of litigation is the Specific Relief Act, 1963. This act was brought for remedies for persons whose civil or contractual rights have been violated. It is essentially used when monetary relief is not sufficient. The law prescribes that in an event where the actual damage for not performing the contract cannot be measured or monetary compensation is not adequate, one party can ask the court to direct the other party to fulfil the requirements of the contract. Combined, these two form important ingredients for a good lawyer.

Anticipating the needs of students and professionals looking to add this arrow to their quiver, Enhelion has collaborated with known professionals to bring a certificate course on the specific relief act and on the statute of limitations. The course is a self-paced one, with comprehensive assessments and many more rewards for those who wish to learn.