Category: Blog

                            ‘A contract defining shareholders’ rights and obligations’

When an individual is planning to establish a company with family members or friends it is easy to presume that nothing can go wrong in the coming years. You might conclude that as you trust each other and you are not in need of something called as shareholders’ agreement, rather it would sound that you are not trusting them if you put forth an idea of shareholders’ agreement.

Probably nothing will go wrong in the future. But even the family members and best friends fall out and you could then end up with literally nothing. Or you might have to face the breakdown of a friendship accompanied by a costly legal dispute related to the business.

A shareholders’ agreement is usually a consensus between the shareholders or investors of a company. It can be between all or only between some of the shareholders. Its motive is to secure the shareholders’ investment in the company as well as to maintain a just relationship between the shareholders and to administer the functioning of the company. The main purposes of the agreement are:

• To set out the shareholders’ rights and duties
• To manage the sale of shares in the company
• To describe the functioning process of the company
• To provide protection for minority shareholders and safeguarding their interests
• To define the process of making important decisions

The shareholders’ agreement will consist of particular, significant and practical rules relating to the company and the relationship between the shareholders.  

Some Salient Features of a Good Shareholder’s Agreement are:

• Nomination of Directors 
• Roles and rights of each shareholder.
• Financing and quorum demands as well as veto rights.
• Representation & guaranties from the Company.
• Restraints on transfer of shares 
• Forced transfer of shares and cutting down further issue of shares.
• Determining Shareholding Threshold i.e. must have a minimum shareholding given to a party for the party to enjoy the rights according to the Shareholding Agreement.
• Establishing and assigning special rights to specific shareholders
• Issuing and transferring shares 
• Providing some protection to the minority shareholders (having less than 50% of shares in the company)
• Functioning of the company that includes appointing, removing and paying directors, determining the company’s business, making capital outlays, providing managerial information to the shareholders, providing banking arrangements and financing the company.
• Paying the dividends.
• Competition limits.
• Procedures for resolution of disputes

Shareholders’ agreement for a minority shareholder:

Lack of shareholders’ agreement will lead to the minority shareholders having little control in the functioning of the company. The control will mostly rest with one or two shareholders.  Companies are normally run by decisions made by the majority and though the articles of association include provisions that safeguard the minority shareholders, these can be amended. 

Being a minority shareholder, it is very crucial to have a shareholders’ agreement that includes the compulsion for all shareholders to approve certain decisions makes sure that you have a say in the key decisions that influence the company.  This could be the decision on the matter of new shares, selection or removal of directors, taking new loans or changing the main trade business etc.

Shareholders’ agreement for a majority shareholder:

If an individual is a majority shareholder and he wants to sell his shares but a minority shareholder is relentless to agree then it becomes very important to include a provision forcing that shareholder to sell his shares.  This is generally known as a “drag along” provision.  This will allow you to realise your investment at a time and at a price that you feel is good.  Although the price and other payments for the sale need to be fair and just for all the shareholders, whether minority or majority.

Also if a majority shareholder wants to prevent minority shareholders to pass on confidential information of the company to competitors or establishing rival businesses, these terms can be included as a provision within a shareholders’ agreement.

Another issue is when one of the fellow shareholders transfers his shares to anyone.  This could be problematic if the sale is made to a competitor or someone else whom other shareholders do not want to get involved with the company. To sort these issues, shareholders’ agreements will usually include rules about share sales and transfer i.e. who shares can be transferred to, on what terms and conditions and at what price.

‘How to identify bankruptcy-related white-collar crimes and avoid them’

Introduction 

When filing for bankruptcy, you are supposed to enlist all the property that you own at present and also any assets that you have transferred to others within a specific period. If you intentionally do not mention the information required when filing your bankruptcy paper, you could be found guilty of fraud. This type of fraud is termed as bankruptcy fraud.

Types of bankruptcy fraud

Bankruptcy fraud is a white-collar crime that generally takes four forms as mentioned:

1. When the debtors conceal assets to avoid having to surrender them. 
2. When individuals knowingly file either false or incomplete forms. 
3. When individuals file multiple times using faulty information or real information in several forms. 
4. When individuals bribe a court-appointed trustee.

Usually, these forms of frauds are accompanied by another crime, such as identity theft, mortgage fraud, money washing, and public corruption.

Recognizing bankruptcy fraud

Most of the times the bankruptcy fraud accusations are straightforward like if a debtor or debtor’s agent cut up documents to conceal the transfer of hidden property that belonged to the debtor’s estate is not complicated.  Other situations are problematic, like if debtor hiding or extremely undervaluing an estate asset. Notwithstanding the complexity of the scheme, lawyer must be aware that sceptical activity is best learned beforehand and thus handled by the way of written documents, depositions and expert consultation. 

Some common fraud schemes involving bankruptcies are:

1. Bust-outs: A bust-out is conducted by a company that is structured to fail from the beginning. The operator obtains the stock from creditors, disposes off the goods (usually for cash) and omits paying the suppliers. A bust-out can also be conducted by purchasing an existing company and using the good credit of the company to obtain goods, without the intention to pay and then disposing off the goods instantly for cash. Examples-

• Distributors of consumer products
• Retail bustouts
• Tax bustouts
• Credit card bustouts
• Travel agency bustouts

1. Bleed-outs: A bleedout is more or less similar to a bustout. It generally involves an existing company and an expenditure of assets by insiders over a relatively longer period of time. In this situation there are hidden assets or fraudulent statements. Long-standing owners or corporate raiders can be executioners of the crime. Examples-

• Corporate Raider Bleedouts
• White knight bleedouts
• Parallel entities

1.  Investor fraud: Also known as the Ponzi scheme (pyramid) accounts seeking investments by assuring interest rates that is way higher than the market rate. Initial investors recover their investments with the promised return rate and recommending others to invest. As the pyramid begins to collapse, investors are unable to recover their original investments and the interest also is no longer paid. Examples-

• real estate schemes
• church and ethnic schemes

How to avoid bankruptcy fraud

• Individuals should not be concerned about committing bankruptcy fraud if certain precautionary measures are taken at the time of filing bankruptcy
• Individuals should be 100% honest about all property, assets, income and information, all should be properly reported to the bankruptcy trustee or attorney
• Individuals should not try to transfer any assets, property or income to acquaintances immediately before filing for bankruptcy
• Individuals should not use any credit cards or take out any loans, it should be done only if it is very necessary within 90 days before filing for bankruptcy otherwise the bankruptcy court may establish that you had no intention to pay back the debt
• If an individual had filed for bankruptcy earlier, he should be absolutely honest about it
• If an individual is required to sell nonexempt assets, he should sell them for a fair market price
• Individuals should not sell non-exempt assets only to purchase exempt assets without a reasonable use for the property

Civil penalties for bankruptcy fraud

• Forfeiture of discharge rights- collectors can sue you and forclose the property as well
• Loss of exemptions- everything taken away
• Prison
• Probation
• Fines

As was once wisely said by John Rawls, “the fundamental criterion for judging any procedure is the justice of its likely results”. As far as the criminal justice system goes, the procedure holds avery important place for the courts. Procedural law can be considered to be the collection of rules that govern how courts do their business. It basically controls how courts hear cases and how parties can bring their case before the court. Procedure is what helps courts decide matters in a fair and uniform manner, with a certain level of predictability so that one party cannot unfairly surprise the other. In criminal law, procedure is followed on a strict basis for two reasons primarily. The first being to protect the accused from an unfair trial, following proper procedure helps in granting the accused his rights to a fair trial and allows a thorough investigation to happen. The second reason is to help bring victims of the crime justice, as they are then kept in the loop and brought forth whenever required.

The Code of Criminal Procedure governs the criminal justice system of India. The law of procedure is that branch of law which governs theprocess of litigation. It embodies the rules governing the institution and prosecution of civil and criminal proceedings. One can say that procedural law is an adjunct or an accessory to substantive law and renders the enforcement of substantive rights very effective. The CrPC provides for an effective enforcement of the Indian Penal Code. It sets out a body of rules which must be followed in the investigation, inquiry or trail of offence under the Indian Penal Code as well as offences under other Acts, which makes it a prerequisite subject for any law student or lawyer. It is one of the key topics for a litigant.

The “Certificate course of Code of Criminal Procedure” curated by Enhelion in partnership with Legal Eye Advocates and LegalConsultants is a one-stop-shop for anyone looking to master this subject. With a detailed analysis of the act chapter-wise, thiscourse also deals with various redressal mechanisms like cognizance,trial, judgment, etc. The course has different kinds of assessments,which ensures holistic growth of knowledge for the lawyer or thestudent, which is what is our ultimate goal.

‘Evidence’, a word that is used quite generously in our daily lives, is one that actually holds a much greater gravitas. One single piece of evidence is all one needs to make or break a case in the court of law. Evidence can be described as the material that is presented before a court of law for the purpose of assisting a judge to reach a decision in the matter. It is further categorized as admissible and non-admissible, documentary and oral, circumstantial and direct, and many more. There are laws that are in place which determine whether a piece of evidence is admissible or not, and how much of reliance can be placed on such evidence. It acts as an aid to the judge by helping him in accepting only the evidence that is accurate and genuine and has a great amount of impact on the case in question.

With today’s advent of technology, it has become difficult to adhere to the old laws which are, in today’s world, rendered incomplete. For example, these days, contracts are not necessarily drafted and signed by in-person. Many such communications happen via emails and also text messages! The old laws were silent on this; as such technology did not exist when such laws were drafted. However, soon, such evidence which was electronic in nature began cropping up in most of the cases, which is when the Indian Evidence Act was amended to include the term “electronic evidence”, and certain standards were set to deem such evidence admissible. The law of evidence has to be ever-changing in order to accommodate the developments of the real world, and a person of law must change according to it.

The“Certificate course on Indian Evidence Act” introduced by Enhelion in partnership with Legal Eye Advocates and Legal Consultants is all that a student or lawyer needs to gain an in-depth knowledge of the laws that govern evidence in Indian Courts. Thiscourse helps in taking stock of the evidence one has while filing amatter in court as well as what is required. A must-have for all the students, this course is a comprehensive guide that will serve as a life-long tool for any lawyer.

The term “procedure” evolves from the word “procéder”,which is French for ‘proceed’. Procedural law can be considered to be the collection of rules that govern how courts do their business. It basically controls how courts hear cases and how parties can bring their case before the court. Procedure is what helps courts decide matters in a fair and uniform manner, with a certain level of predictability so that one party cannot unfairly surprise the other. The Code of Civil Procedure (CPC) is what governs the happenings at the civil courts. The CPC regulates every action in civil courts and parties before it till the execution of the decree and the order. The purpose of the CPC is to implement substantive law, and ensuring justice by enforcing the rights and liabilities.

The Code of Civil Procedure is a territorial law, and has been amended several times to meet the needs and requirements which are dynamic and changing from time to time. Enumerating on what comes under the umbrella of the procedural law, it includes jurisdiction of the courts, proceeding in the court, issue of processes which includes summons, warrants, etc, pleadings, trial procedure, recording of evidence, appearance of parties, advocates, prosecutors, etc, judgement of the courts, costs, review, revision, appeals etc., and finally the execution of decree or order or punishment in criminal cases.

Therefore differentiating it with the substantive law, it deals with the ends which the administration of justice seeks to achieve. Whereby procedural law deals with the means and procedure by which those ends can be achieved. While substantive law determines the conduct and relations inter se in respect of the matter litigated, the procedural regulates the conduct of the court and parties therein. The end of the administration of justice is dealt with the procedural law deals with means and instruments by which the ends of justice may be attained.

To make learning of this code simpler and more comprehensive, Enhelion has collaborated with Legal Eye Advocates and Legal Consultants to bring a course named “Certificate on Civil Procedure Code”.Being a self-paced course, this course helps the student in strengthening his/ her knowledge of the backbone of civil litigation by focusing on summons, procedure, inquiry, appearances, and other concepts.

India’s step to liberalize, globalize and privatize the Indian economy was a largely impactful one, and not one without consequences. The laws that would govern the market earlier were the Monopolies and Restrictive Trade Practices, 1969 (MRTP Act), which restricted the growth of monopolies in the market. India’s transition from a “command and control” economy to that of a free economy has brought forth a new legislation under the name Competition Act, 2002. This new legislation is considered to be at par with the other established contemporary competition laws of the world.

As a general rule, competition laws are premised upon the economic principle that competition is desirable in a free market. Competition laws seek to prevent businesses from engaging in practices that are harmful to competition and consumer welfare. Competition law, unlike any other law in existence in India, attempts to regulate the manner in which business is conducted by enterprises. It attempts to codify such conduct that is either pro-competitive or anti-competitive in nature. The purpose of such law is manifold, the primary ones are to prevent practices that are detrimental to competition; to promote and sustain competition in the markets; to safeguard the interests of the consumers; and to ensure freedom of trade carried out by other participants.

There are certain practices (such as abuse of dominant position, cartelisation, etc.) that are strictly forbidden. The key lies in determining and identifying such practices and the laws that punish such acts. There has been a rise in competition in the market due to upcoming players, and also in the cases presented before the adjudicating authority, i. e the Competition Commission of India(CCI). The CCI is a quasi-judicial authority that has jurisdiction over cases regarding this matter. Such adjudication and trial and inquiries require advocates who are well-versed with the laws and can assist in such cases. Corporations also require advocates who can assist them in avoiding attracting liability and staying within the rules of mergers.

Enhelion, in collaboration with Dhuparr and Associates, has curated a “CertificateCourse in Competition Law”which not only covers all the essential topics, but also conducts assessments in multiple modes that ensure that the student has grasped the concepts properly. Being self-paced, this course is perfect for those looking to have a career in competition law.

One of the pillars of democracy in any nation is the media. The power that the media holds is commendable, but at the same time one must not ignore the responsibility it wields as well. The media holds an immense amount of influence on the public, and it can make or break the system as we know it. While it is important to regulate the media, as too much of power can lead to potential abuse, it is equally important to protect the media against encroachment of their basic rights. In a democratic society media enjoy more powers and face less restrictions and regulations. In an authoritarian form of governance, the working of the media is restricted and controlled to a great extent. Sometimes media in autocracies or under military rule are not all free.

In India, the situation is a mixed one. The mass media enjoy certain freedom. But the Constitution imposes certain reasonable restrictions. Then there are laws that regulate the functioning of mass media in India. Media laws in India have a long history right from the British rule. The Government enacted several rules and regulations in India to perpetuate in rule. After independence, more laws have been enacted and the old ones amended for the benefit of the society. In the olden days, whenever one would speak of the media, it would normally be the newspapers and at most the television. Today, times have changed. Media not only includes newspapers, but also the news TV channels, the internet, and much more. While the Constitution of India does not grant a direct right to the media, there is an indirect provision that is present in the form of Article 19(1)(a), which guarantees the freedom of expression of speech. However, it is pertinent to note that such a right given is not absolute, and must be used with discretion.

Since the situation of the laws that govern the media is so dicey, it becomes difficult to teach the same via simple classroom teaching.This is precisely why Enhelion has partnered with Scriboard Advocates and Legal Consultants to bring about a course titled “Certificateon New Media Laws”, which has a comprehensive syllabus that empowers the learner with all the knowledge needed in the particular field.

We live in an unfortunate era where sexual harassment has become so rampant, that it plagues workplaces as well. It has increased so much that statistics show every one in four women being sexually harassed at their workplace. It is not just women, but also men who have faced such harassment time and again. The effect of such continuing behaviour is inclusive but not limited to absenteeism, poor morale, loss of focus, conflict and boycotting amongst colleagues, and much more. It is pertinent that such behaviour stop, which is why the Sexual Harassment of women (Prevention, Prohibition and Redressal)Act was passed in 2013.

Oneof the major issues present is that of identification. Persons who are victims of such behaviour fail to identify such behaviour as an offence. This is why corporations have taken the initiative to conduct Prevention of Sexual Harassment (POSH) workshops for their employees, to help in creating a healthier work environment. As per the guidelines that were issued in Vishakhaand ors. vs. State of Rajasthan,sexual harassment need not involve a physical contact. “Any act that creates a hostile work environment—be it by virtue of cracking lewd jokes, verbal abuse, circulating lewd rumours etc.counts as sexual harassment,” as per the guidelines. The government has made it a mandate for all companies to follow and propagate these guidelines. Every company nowadays has brought a major policy change for their company and has also employed outside sources to conduct workshops for every employee to create awareness and prevent sexual harassment.

Enhelion, in partnership with Scriboard Advocates and Legal Consultants has created a “Certificate course of Prevention of Sexual Harassment at the workplace”which helps law students and professionals gain an in-depth knowledge on the subject while adding another feather in their crown.

Smell is one of the most potent types of human memory, and businesses show increasing interest in pairing pleasant scents with their products. To obtain registration of a smell mark applicants must be able to visually represent the product’s scent and must show it is distinctive from the product itself. A bottled sample of the smell for example would decay over time and could therefore not be kept on a trademark register. But representing the smell in a visual way is a tricky process. Writing down the chemical formula for a smell is problematic as it is deemed to represent the substance rather than the smell of that substance. Any written description of a smell must be so precise that that particular smell would not be confused with any other.

An additional obstacle to smell mark registration is that the smell must not result from the nature of the good itself. For example, an application by Chanel to register its well-known No. 5 fragrance as a smell mark in the United Kingdom was unsuccessful on that count – the scent of the perfume being the very essence of the product. However, some smell mark descriptions have met the distinctiveness test and been successfully registered, such as: a Dutch company’s tennis balls with the scent of newly mown grass; and UK registrations for tires with “a floral fragrance/smell reminiscent of roses” and darts with “the strong smell of bitter beer.” The Office for Harmonization in the Internal Market (OHIM), however, does not agree with the granting of the two UK registrations.

-The amount of evidence required to establish that a scent or fragrance functions as a mark is substantial in the US. In order to overcome this requirement of substantial evidence, the applicant has to establish two primary things:

1. Proving non-functionality:- A feature is functional if it is essential to the use or purpose of the goods, or, if it affects the cost or quality of the product. If a product feature is functional, it cannot be protected as a trademark, even with proof of secondary meaning. The functionality doctrine seeks to prevent trademark law from inhibiting competition, by allowing a trademark owner to control a useful product feature. Therefore, if an applicant can show that the scent acts as a source identifier without performing any other significant function, the scent is likely pass the non-functionality test.

1. Proving distinctiveness:- A nonfunctional scent mark may be registered on the Principal Register, but only with proof of acquired distinctiveness. As mentioned above, the amount of evidence needed to establish acquired distinctiveness of a scent mark is substantial. If an applicant is unable to demonstrate that a scent has acquired distinctiveness, the scent can be registered only on the Supplemental Register. After a scent mark has existed for five or more years on the Supplemental Register and additional evidence of acquired distinctiveness has been obtained, the registrant may file a new application for registration of its mark on the Principal Register

In the landmark case of Sieckmann v. German Patent Office(case C-273/00) where the European Court of Justice’s decision constituted one of the first steps taken towards attempting to put into perspective the entire matter of graphical representation of olfactory marks. The primary issue here was whether a scent, graphically depicted by the applicant as “balsamically fruity with a slight hint of cinnamon” would permit its registration as a smell mark.

The bench observed the various difficulties in the graphical representation of smell.

Firstly, its representation in the form of a worded description would remain subjective to a large extent, free to be interpreted differently by different people. To describe it with such clarity and precision that it is interpreted identically by every reader would prove to be a very difficult task. For instance, Courts may grapple with enforcing a scent described merely as “strawberry” or “peach”

The representation of the smell in a chemical form does not enable to be definitively identify the exact scent/odour emanated, on account of certain factors influencing its perception, such as temperature, concentration etc. Additionally, the technical knowledge it would require to interpret the formula to ascertain the smell itself is essentially unknown to the general public.

Thirdly, deposition of a sample may prove to be insufficient -the smell being volatile in nature often tends to change or even fade over time. Article 2 of Council Directive 89/104 holds that the representation so made must be clear, precise, self-contained, easily accessible, intelligible, durable and objective.

The Bench’s 2002 landmark judgment accordingly held that although olfactory marks possess distinctiveness, clear, concise and objective graphical representation of the smell mark under the present law cannot be attained; smell marks thus not constituting trademarks within the definition of Article 2.

The Indian Trademarks Act defines trademarks as “a mark capable of being represented graphically and which is capable of distinguishing the goods or services of one person from those of others and may include shape of goods, their packaging and combination of colours.” The Rules define graphical representation to mean the representation of a trade mark for goods or services in paper form. Thus, it can safely be asserted that graphical representation is a sine qua non for TM Registration in India. Another important criterion to be satisfied is distinctiveness. The proviso to section 9 (1) of the Trade Marks Act, 1999, recognizing this concept of “acquired distinctiveness” inter alia provides that “a trade mark shall not be refused registration if before the date of application for registration it has acquired a distinctive character as a result of the use made of it”.

Though graphical representation and secondary meaning associated with non-traditional trademarks are sine qua non, the principle of representation imposes a greater hurdle for the registration of smell marks. In the event that a practical and cost effective solution is devised, eliminating the impediment to graphical representation, olfactory marks shall be registrable, obviously along with distinctiveness. The Indian system has definitely gathered a lot from the experiences of the European Union and the United States, and while its decision to not grant trademark-ability status to olfactory marks is based on practical impediments that exist today, the same may be subject to change, considering the growing commercial and advertising trends that exist, coupled with technological advancement.

 

THE TURMERIC CASE

On March 28, 1995 the United States Patent and Trademark Office (USPTO) granted a patent (US 5401504) to two expatriate Indians of the University of Mississippi Medical Centre for a method of promoting healing of a wound by administering turmeric to a patient afflicted with the wound. Turmeric is a plant yielding saffron-coloured rhizomes and has been used by the people of India for ages as a flavour for cooking. It has also been used widely as a colour dye and for cosmetics. Most importantly, turmeric has been used for its medicinal qualities to heal wounds and rashes. 

The Indian Council for Scientific and Industrial Research (CSIR) filed a case with the USPTO challenging the patent by providing evidence of “prior art”. CSIR presented an ancient Sanskrit text and a paper published in 1953 in the Journal of the Indian Medical Association to support their claim that the use of turmeric for medical purposes was known in India for many years and hence its use as a medicine was not a new invention. The USPTO upheld the objection and cancelled the patent on the grounds that it failed to meet the novelty criteria. 

WHAT IS TRADITIONAL KNOWLEDGE?

Traditional Knowledge means the development and transmission of the knowledge from generation to generation within a system, held by local individuals, families, lineages or indigenous communities.

THE SIGNIFICANCE OF TRADITIONAL KNOWLEDGE

Traditional knowledge (TK) is integral to the identity of most local communities. It is a key constituent of a community’s social and physical environment and, as such, its preservation is of paramount importance. Attempts to exploit TK for industrial or commercial benefit can lead to its misappropriation and can prejudice the interests of its rightful custodians. In the face of such risks, there is a need to develop ways and means to protect and nurture TK for sustainable development in line with the interests of TK holders. The preservation, protection and promotion of the TK-based innovations and practices of local communities are particularly important for developing countries. Their rich endowment of TK and biodiversity plays a critical role in their health care, food security, culture, religion, identity, environment, trade and development. Yet, this valuable asset is under threat in many parts of the world. There are concerns that this knowledge is being used and patented by third parties without the prior informed consent of TK holders and that few, if any, of the derived benefits are shared with the communities in which this knowledge originated and exists. 

HOW CAN WE PROTECT TRADITIONAL KNOWLEDGE?

 

• Defensive Protection: It aims to prevent people outside the community from getting intellectual property rights over traditional knowledge.  It can also be used to protect sacred cultural manifestations like sacred symbols or words from being registered as trademarks.

• Documentation: It helps in preservation, dissemination, use and management of this knowledge rather than for the purpose of legal protection.

 

• Positive protection: It is the granting of rights that empower communities to promote their traditional knowledge, control its uses and benefit from its commercial exploitation. 
• The ‘protection’ may be granted to exclude the unauthorized use by third parties of the protected information. 
• ‘Protection’ also means to preserve traditional knowledge from uses that may erode it or negatively affect the life or culture of the communities that have developed and applied it. 
• While recognizing the market-based nature of IPRs, other non-market-based rights could be useful in developing models for a right to protect traditional knowledge, innovations and practices. 
• Provisions under undisclosed information or trade secrets could be invoked to protect traditional knowledge not available in the public domain. 
• Geographical indications and trademarks could also be the alternative tools for indigenous and local communities seeking to gain economic benefits from their traditional knowledge.

MEASURES TAKEN IN INDIA

Developing countries need a systematic documentation of traditional medicine for protection purposes, regional and inter-regional information exchange and compilation of the requisite databases etc. To mitigate this problem, the Indian Government has taken steps to create a Traditional Knowledge Digital Library (TKDL) on traditional medicinal plants and systems, which will also lead to a Traditional Knowledge Resource Classification (TKRC). Linking this to internationally accepted International Patent Classification (IPC) System will mean building the bridge between the knowledge contained in an old Sanskrit Shloka and the computer screen of a patent examiner in Washington. This will eliminate the problem of the grant of wrong patents since the Indian rights to that knowledge will be known to the examiner. It is right time that India must evolve a viable and effective mechanism to protect the biodiversity, bio-information and creativity of indigenous communities.

CONCLUSION

The era of globalization has allowed the blatant misuse of traditional knowledge and granting of monopolistic rights to a few in spite of the fact that the traditional knowledge has been known and used for centuries by indigenous groups. Documentation activities undertaken by developing countries like India are worth recognition. However, unless there is awareness and strict measures about respecting and valuing traditional knowledge, corporations can always find a way to commercially exploit the traditional knowledge to their advantage. The main concern of protecting traditional knowledge should include equitable distribution of benefits, conservation concerns, preservation of traditional practices and culture, the prevention of misuse by unauthorized parties of traditional knowledge and promotion of its use and its importance in development.