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Contributory Negligence

By:- Manas Mishra

Many times, we overlook various rules which are made for ourselves or if we say, for the public welfare. It is our duty to act or omit acts which we are not supposed to obey and not obey, respectively. We should always take reasonable steps, keeping our eyes open and adhering to various legislations.

We all are supposed to be law-abiding person and everything depends upon our acts or omission of acts. Acting or obeying restricted acts always result in the creation of unavoidable happenings while the consequences of not following welfare concerned laws cost us more than expected.

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When the plaintiff corresponds by himself to the injury suffered by the negligence of the defendant or unlawful conduct, he is held guilty of contributory negligence. Contributory negligence comes into existence when the plaintiff does not take reasonable care on his part to avoid the harmful consequences. He contributes himself to the mishappening of the event.

Illustration:-

  • A person, riding on the wrong side of the road and meet with the accident arising out of the collision of the car.

Municipal Corpn. Of Greater Bombay v. Laxman Iyer[1]

In this case, it was said that both the parties would be liable for the negligence arising out of an accident. In cases related to contributory negligence, the question of liability would depend upon whether either of them would have tried to take due care and avoid the consequences of other’s negligence. Whoever between them would have taken necessary care to get the consequences rid of, arising out of other’s negligence, would be liable for the negligence. Contributory negligence is completely dependent on the conduct of a plaintiff.

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For exercising defense under contributory negligence, defendant mustprove that the plaintiff did not take reasonable care avoid the accident.

Rural Transport Service v. Bezlum Biwi[2]

The conductor having known the fact that the bus is full of passengers and cannot afford more yet invited many others and made them comfortable at the roof of the bus. The driver tried to overtake the bus, forgetting that passengers of roof of the bus. This action of driver led to death of one of the passengers of roof due to injury arose out of hit by the branch of a tree. The court held that driver and conductor would not be liable for this misshaping since there was contributory negligence on the part of deceased passengers and others who had implied consent to travel on the roof of the bus, taking risk.

Rules for determining Contributory Negligence

  1. The plaintiff’s carelessness regarding the contributory negligence defense does not have the identical meaning as the tort of negligence. The plaintiff does not have to owe the other party a duty of care in this case. What must be proven is that the plaintiff failed to take reasonable precautions for his own safety, therefore contributing to his own harm. Thus, all it takes to show contributory negligence is to demonstrate to the jury and satisfy them that the injured person did not take reasonable care of himself in his own interests and contributing to his own lack of care for himself.

Bhagwat Sarup V. Himalay Gas Co.[3]

It was held that the deliveryman’s fault was solely his own. It has also been noted that simply giving an axe/hammer to the delivery person on request did not indicate contributory negligence on the petitioner’s part, because the petitioner was a layman, whereas the delivery person was a trained individual who was expected to understand the consequences of the conduct he was performing.

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  1. It is insufficient to establish that the plaintiff did not take reasonable precautions to ensure his own safety. It should still be demonstrated that his carelessness caused to the resultant damage. The defense of contributory negligence cannot be invoked if the defendant’s carelessness might well have inflicted the same harm even when the plaintiff had already been cautious, and the petitioner’s fault may not be the main reason for the crash.

Agya Kumar V. Pepsu Road Transport Corporation[4]

It was held there has been simply carelessness on the part of the bus driver, and despite the reality that the rickshaw was overburdened, there was almost no contributory negligence on the part of the rickshaw driver, because the rickshaw’s overburden had no bearing on the accident’s occurrence.

National Insurance Co. V. Kastoori Devi[5]

In this case there was a collision between a motorcycle consisting of three to four people and truck. The collision led to serious accident. It was held that the circumstance that the motorcyclist was transporting three people in the passenger seat did not suggest that he was guilty of contributory negligence. Unless  he veered off the road due to its overweight so this led to the outcomes would he even be convicted of contributory negligence.

 

Scope of Contributory negligence as defence

Contributory Negligence on the claimant’s behalf was proven to be a good defence, and the claimant’s case was dismissed. The claimant was barred from bringing further actions against the reckless defendant due to his own carelessness. Plaintiff’s carelessness does not really imply a violation of duty to one of the other parties, but rather a failure to take reasonable precautions to ensure his own protection. The rule of law states that if both parties share fault for the catastrophe, regardless matter how minor that culpability is on one side, the loss is borne by the party who fails.

Butterfield V. Forrester[6]

It was held that the plaintiff has no basis of claim even though he could have averted the mishap by taking reasonable precautions. When one individual is at fault, it does not negate the need for the other one to take reasonable care of oneself. To establish this claim, there must be an obstacle on the road caused by the defendant’s fault and no lack of due prudence on the claimant’s to prevent it.

The doctrine posed a significant burden for plaintiffs, since even little carelessness on their side might result in their losing their case against a defendant whose carelessness was the primary source of the complainant’s damages. Laws concerned with contributory negligence have been amended by initiating Last opportunity Rule.

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Last Opportunity Rule

When two people are careless, the one who had the later chance to avoid the accident by using ordinary caution should be held responsible for the loss. It indicates that if the defendant is negligent and the plaintiff has a later opportunity to prevent the defendant’s negligence’s effects, the plaintiff will be held responsible. Similarly, if the defendant had the final chance to avoid the disaster, he would be held responsible for the whole damage suffered by the plaintiff.

Davies V. Mann[7]

The complainant chained his donkey’s forefeet and abandoned it on a winding road. The defendant was driving his horse-drawn cart too quickly, and the donkey was killed as a result of his carelessness. Despite his own fault, the plaintiff was found to be entitled to compensation since the defendant failed to follow the last-chance rule.

Subhakar V. Mysore State Road Transport Corporation[8]

The court lowered the amount of compensation due since the claimant was at fault. The claimant-appellant, who was riding a bicycle at the time, abruptly switched to the right side of the road. He was hit by the respondent’s bus, which caused him to fall and injure his leg, needing two and a half months in the hospital. It was held that due to the fact that both parties contributed equally to the accident via their negligence, the claimant’s compensation was lowered by 50%.

Vidya Devi V. M.P. Road Transport[9]

In this case, a motorcyclist collided with a bus and died because of the collision. The bus driver was also found to be at fault for failing to keep a good lookout to avoid a probable accident. It was held that the plaintiff was entitled to one-third of the damages, and he would have been entitled to if the dead motorcyclist had not been negligent.

Municipal Corporation of Greater Bombay V. Shri Laxman Iyer[10]

Supreme court held that in the case of contributory negligence, courts have power to apportion the loss between the parties as seems just and equitable. In this context means that damages are reduced to such an extent as the Court thinks it is just and equitable having regard to the claim.

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Doctrine of Alternative Danger

Despite the fact that the plaintiff is expected to be cautious and the defendant’s carelessness, there may be times when the plaintiff is justified in taking a risk since the defendant has created a dangerous scenario. The plaintiff may feel puzzled or worried because of a risky scenario caused by the defendant, and to protect himself, his property, or a third party from harm, he may take an alternative risk.

As a result, the law allows the plaintiff to face an alternative hazard to protect himself from the threat posed by the defendant. His action against the defendant will not fail if the route he chooses cause him some injury.

Shyam Sundar V. State of Rajasthan[11]

Due to defendants’ carelessness, (the State of Rajasthan), a truck actually belonged to them went up in flames after just four kilometres on a specific day. When one of the inmates leapt out to escape the flames, he collided with a stone by the roadside and died instantly. The defendants were found to be responsible for the same.

Sayers V. Harlow Urban District Council[12]

It was held that Defendants were responsible because the plaintiff’s damage was a natural result of their breach of duty.

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Contributory Negligence of Children

What constitutes contributory negligence in the instance of an adult may not apply to a kid since a youngster cannot be assumed to be as cautious as an adult. To determine whether a suspect is convicted of contributory negligence or not, the maturity of the individual must be taken into account.

  1. Sriniwas V. K.M. Parasivamurthy[13]

In this case, it was held that a 6-year-old kid lacks the road sense and familiarity of his or her elders, the plaintiff cannot be held liable for contributory fault.

D.T.C. V. Lalita[14]

The position of children for the purpose of contributory negligence was explained by Delhi High court I this case:-

“In the case of a held of tender age, conduct on the part pf such child contributing to an accident may not preclude it from recovering in circumstances in which similar conduct would preclude a grown up person from doing so.”

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Conclusion

Contributory negligence often led the claimant to meet with loss as it acts as defence for the defendants. Myriads of judicial decisions show that claimants do not prove their point to get compensated by the defendant when there is a reckless conduct of other party. On other side, it works with great ease as of its defence nature for them. There is no doubt that certain proviso exists for this defence. For instance, in Last Opportunity Rule in which who is found that he has had chance to avoid the mishappening at last, but nothing is brought into action, so he will be liable for reckless conduct. Contributory Negligence is much seen in motor vehicle accident cases.

Many a times there is no way left where plaintiff has to take corrective measures on the spot to save himself or others or the property knowing the fact that complex circumstances have been created by the defendant, he takes the risk. Further while deciding the case, Court has to consider the age in Contributory negligence arises out of conduct of children.

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[1]AIR 2003 SC 4182

[2]AIR 1980 Cal. 165

[3]AIR 1985 H.P. 41

[4]AIR 1980 P. & H. 183

[5]1988 ACJ 8 (Raj.)

[6](1809) 11 East 60

[7](1882) 10 M. and W. 546

[8] AIR 1975 Kerala 73

[9] AIR 197 M.P. 89.

[10]AIR 2003 SC 4182

[11]AIR 1974 SC 890

[12](1958) 2 All E.R. 342

[13]AIR 1976 Goa 1

[14]AIR 1982 Delhi 558

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Contracts in Fashion Industry

By:- Prachi Parekh

INTRODUCTION:

Nowadays, people love to spend upon fashion-related products and this has helped the fashion industry to grow tremendously within a short span of time. The growth in the industry has led to employment generation and variety of career opportunities in the same, as well as innovative services and techniques are being welcomed by the industry. This has again led to growth and discovery of various new channels of providing these services and for which different contracts have to be created for each and every channel. Let us find out about various contracts that can be made under this industry.

TYPES OF CONTRACTS IN THE FASHION INDUSTRY AND CLAUSES CONTAINED IN THEM:

  1. CONSIGNMENT CONTRACT: This is a contract between a retailer and his agent wherein the retailer grants the right to sell, merchandise, conduct an exhibition for sale of the fashion apparel or inventory. Here, the retailer is called as consignor and his agent as consignee in the whole contract.

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CLAUSES IN CONSIGNMENT CONTRACT[1]:

  1. Preamble: It depicts the details and facts of whole contract in short
  2. Duration clause
  3. Terms of sale of products clause
  4. Percentage that each party would receive clause or Consignment fee clause
  5. Payment options clause
  6. Liability for lost or damaged stock clause or Insurance Clause
  7. Effect on non-sale clause
  8. Minimum Price clause:the price below which the fashion products should not be sold
  9. Location and storage of stock during consignment clause
  10. Expenses clause
  11. Modification/Amendment clause
  12. Applicable law clause

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  1. SHOWROOM RENT CONTRACT: It is a contract between the shop owner or showroom owner and the designer of fashion products for renting out the shop space to sell his stock. It is a type of a rent contract between these parties wherein the shop owner grants his shop to the designer against periodical payments of rent for the letting.

CLAUSES IN SHOWROOM RENT CONTRACT:

  1. Preamble
  2. Duration clause
  3. Expenses clause
  4. Terms of the rent payment clause
  5. Applicable law clause
  6. Dispute Resolution clause: In which court to refer the dispute in is included in it.
  7. Terms of letting clause: for example, whether the showroom will be furnished or not
  8. Payment of taxation clause
  9. Breach of contract clause
  10. Liability for damage to the showroom clause
  11. Security deposit clause: the amount of deposit to be given by the designer to the owner for rent
  12. Modification/Variation clause
  13. Termination clause: it also includes notice period to be given to each other

 

  1. FRANCHISE CONTRACT IN FASHION INDUSTRY: This is acontract wherein one party grants the authority to other to open and operate the business in the name of the selling party. The party granting such a right is called as a franchisor and other party is termed as a franchisee. We find many franchises in fashion industry such as Being Human,Fittin, Choupette, Duke, lenskart.com, Bombay dyeing[2], etc.

CLAUSES UNDER FRANCHISE CONTRACT IN FASHION INDUSTRTY:

  1. Preamble
  2. Franchise fee clause
  3. Security Deposit clause
  4. Royalties clause
  5. Mode of Payment clause
  6. Confidentiality clause: wherein the franchisee agrees not to disclose franchisor’s trade secrets
  7. Standards of Operations clause: wherein fixed set of standards have been set and the franchisee needs to follow them accurately
  8. Inspection clause: Right of franchisor to inspect the premises at regular intervals
  9. Applicable laws clause
  10. Proper registrations by franchisor relating to licenses clause
  11. Advertising and Brand Promotion clause
  12. Training, supervision and support clause
  13. Use of trademark and intellectual property clause: This is one of the most important clauses wherein the franchisor needs to have registered the trademark and should have exclusive rights for use of such a trademark
  14. Duration of contract clause
  15. Renewal clause
  16. Termination of contract clause
  17. Dispute Resolution clause: for example, arbitration, mediation, conciliation
  18. Force Majeure clause: Wherein any of the parties fails to perform their functions due to unforeseen circumstances, then what should be done?
  19. FASHION RELATED ADVERTISING AND PROMOTIONAL CONTRACT: It includes a contract between a designer/retailer/manufacturer of fashion products and an advertising and marketing agency for promoting these products through various channels in exchange of an advertising fee.

CLAUSES UNDER FASHION RELATED ADVERTISING CONTRACT:

  1. Preamble
  2. Duration of contract
  3. Scope of Work clause
  4. Budget and Payment schedule clause
  5. Advertising fee/price clause
  6. Consequences of late payment clause
  7. Breach of contract clause
  8. Termination clause
  9. Dispute Resolution Clause
  10. Copyright clause: This ensures that the ad agency is properly disclosing all the due credits and information relating to their use of any product or services which leads to prevention in copyright violations.
  11. Confidentiality clause
  12. Indemnity clause: If the designer/retailer/manufacturer faces any financial hit, or some similar situation and has not paid the ad agency as per the terms of the contract, then they will need to indemnify the ad agency for their loss
  13. Terms and conditions clause

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  1. FASHION INDUSTRY EMPLOYMENT CONTRACTS:The employment contracts in fashion industry have a wide range. These can include employment for modelling and acting, designing, stitching, manufacturing, transportation and distribution/shipping of fashion products.

CLAUSES OF FASHION RELATED EMPLOYMENT CONTRACTS[3]:

  1. Preamble: Information relating to the facts for entering into the contract, parties and type of employment
  2. Duration clause
  3. Force Majeure clause
  4. Salary/Wages/Remuneration related clause
  5. Number of working days clause
  6. Confidentiality clause
  7. Annual/sick Leave clause
  8. Maternity/Paternity leave clause
  9. Liability for breach of contract clause
  10. Termination clause
  11. Dispute resolution clause
  12. Places to be worked at clause
  13. Other perks or social benefits clause
  14. Overtime clause
  15. Retrenchment Benefits clause
  16. Outsourcing/ sub-contracting clause
  17. Restrictions/prohibitions in employment clause: Sometimes there may be restrictions to the person being employed by and an employer in the fashion industry relating to age, marriage etc and is included in this clause.
  18. Survivability clause
  19. Severability clause

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  1. OUTSOURCING CONTRACTS IN FASHION INDUSTRY:These contracts include outsourcing certain services or products which are important to the fashion industry. For example, fashion events management services, human resource services, apparel outsourcing, technology outsourcing.

CLAUSES UNDER FASHION OUTSOURCING CONTRACTS INCLUDE[4]:

  1. Preamble: including the reason, facts and details of parties entering into the contract
  2. Retained Rights clause: Each party retains certain rights with respect to title, interest etc
  3. Terms and conditions clause: It may include that the services or products must be of good quality and free from any defects
  4. Remuneration clause
  5. Duration clause
  6. Liability for Breach clause
  7. Confidentiality clause
  8. Survivability clause: it ensures that even after the contract has been performed certain terms and conditions in the contract will still remain in force, this is because of the confidentiality and non-disclosure clause, as the trade secrets have to be kept secret even after completion of the performance to the contract.
  9. Termination clause
  10. Guarantee/Warrantee clause
  11. Modification/Amendment clause
  12. Technical assistance clause
  13. Territories of providing services clause
  14. Inspection and acceptance clause
  15. Applicable Law clause
  16. Severability clause:Due to any uncertainty if provision of this contract becomes unlawful or impossible to perform, then this clause ensures that the whole contract is not termed as unenforceable but except the certain provisions remaining of the contract remains in force with full validity.
  17. Independent contractor clause
  18. Dispute resolution clause

CONCLUSION:

Thus, as we saw above these were some of the different types of contracts under the fashion Industry and some of which though contains similar clauses but are also specialised as per their work. Some clauses such as severability, survivability, dispute resolution, applicable governing laws, confidentiality clause, force majeure clause are amongst the most important clauses which safeguards the contract against uncertain or unforeseen events that can make the contract disputable or void. Inserting these clauses ensures that the contract remains in force and is termed to be valid. The non-disclosure clause also ensures that the valuable trade secrets are not revealed by the parties to the contract and the survivability clause exists even after the parties have finished dealing or performing as per the contract and if such a term is breached, the consequences need to be faced by the defaulting party as per the provisions in that effect in the respective contract.

[1]https://www.pandadoc.com/consignment-agreement-template/

[2]https://topfranchise.com/articles/the-top-10-fashion-franchise-businesses-in-india/

[3]https://legaltemplates.net/form/employment-contract/

[4]https://www.pandadoc.com/business-contract-template/

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Inconspicuous Agony of The Innocent: Child Sexual Abuse in India

By: Isiri Rajaneesh

Introduction:

An omnipresent yet a discreet problem in India, child sexual abuse, defined as “the misuse of power and authority, combined with force or coercion which leads to the exploitation of children in situations where adults, or children sufficiently older than the victim to have greater strength and power, seek sexual gratification through those who are developmentally immature, and where, as a result, consent from the victim is a non-concept,”[1]has a slew of negative effects on children and contributes to conditions such as arrested development, psychological, physical and behavioral impacts and may also lead to post traumatic stress, depression, anxiety, etc.

The problem of sexual abuse of children is one which often goes unreported and the innocent victims are just left to agonize in silence. Offensive activities such as molestation, sexual assault, incest, sodomy, etc. are included under the ambit of child sexual abuse. In 2012, the Protection of Children from Sexual Offences Act (POSCO), was enacted in order to protect children from sexual abuses as well as to secure the rights of children. This article analyses the different facets of the act and also looks into a few of its shortcomings.

An abridgement of Child Sexual Abuse in India:

With a population as huge as India’s, the sexual abuse of children is an entrenched social problem and this problem is a culmination of various socio-cultural factors such as poverty, abandonment of children, illiteracy, cultural beliefs and practices pertaining to parental rights and styles, family secrecy, etc.[2]Child sexual abuse is a problem which is as substantial as adult rape, but the line of difference between the two is that children usually aren’t aware that they are being sexual abused or experiencing any kind of abuse for that matter and if they do, they are scared to report it to their parents.

Child abuse is categorized into various types, namely sexual abuse, physical abuse, non-physical abuse, incest, commercial sexual exploitation of children, online sexual abuse and so on. In rural India, especially, girls face discrimination pertaining to education, status, etc. and are most likely to experience infanticide and it was this problem of infanticide, along with child rapes and institutional abuse of children that led to the commissioning of the first, large scale, government sponsored research study to assess the extent and nature of child abuse in India.[3]As according to this study,while for every second a child reported emotional abuse, 69% reported physical abuse and 53% reported some form of sexual abuse and half of the sexual abuses reported were committed by people known to the child.[4]As according to many studies, upto 20% of sexual abuse transpired in families and upto 50% in various institutional settings.[5]In 2018, as per the data released by the National Crime Record Bureau, close to a 109 children faced sexual abuse every day, and the number increases substantially every year.

Until 2012 there was no bona fide legislation in India to address sexual crimes against children. Those sections of the Indian Penal Code which recognise sexual offences against children have a loophole and are not specific to children and other forms of sexual assaults, exploitations, etc. were beyond the domain of explicit crime. In 2012, the government of India enacted the Protection of Children from Sexual Offences Act (POSCO) which criminalizes child pornography, sexual harassment and sexual assault against children. This legislation was a milestone pertaining to the area of child protection.

POSCO and its distinguishing characteristics:

A landmark legislation, acquiring justice for children who have been victims of various sexual offences as well as securing their interests and well-being are some of the objectives of the POSCO act. The act also mandates setting up of special courts in order to accelerate trials of these offences[6]as any delay in the conveyance of justice can discombobulate the lives of the victims and their families, not to mention that facing the complexity of the judicial system, such as intense questioning of the victim in the court, the media hype surrounding the case, etc., can be an enervating journey for victims and their families alike. Some of the features of POSCO are as follows-

  • Copious offences, ranging from complete or partial penetration, non-penetrative sexual assault, to stalking, exhibitionism, child pornography, etc. [7] are criminalised by the act.
  • As according to sections 5 and 9 of the act, perpetrators who are familiar to the victim or are in a position of authority, such as public servants, police officers, etc. attract severe penalties. This includes sexual offences such as gang rape, assault, causing bodily harm, infecting a child with HIV, etc., committed by people in a shared household with the child or by people who are in a position of power pertaining to the victim.[8] The act takes into account a slew of possible scenarios.
  • POSCO takes into account sexual offences committed against both girls and boys who are under the age of 18 and also necessitates punishment for all offenders, disregarding age or gender.
  • An exclusive feature of the act is that the burden of proof is on the accused, i.e., the accused is presumed to be guilty until proven innocent. This is in order to ensure that the child is not burdened to prove that the crime took place.
  • POSCO also provides for trials to be held in a child-friendly way in order to reduce the trauma of the victim and calls for procedures to be held in a sensitive manner according to the needs of the child, for example, section 24 provides that the police reach out to the child rather than the child being taken to a police station and made to report the offence committed.
  • In order to protect the identity of the victim, the act calls for trial proceedings to be held privately and in a sensitive manner, with the victim’s testimony given either in camera or held behind curtains or screens.[9] Also, under the rules of the act, a Child Welfare Committee is to be appointed in order to support and provide assistance to the victim through the investigation and trial procedures

While the enactment and implementation of the act was a welcome move, there were a few shortcomings, which may cause unintended, negative consequences and which are discussed below.

Lacunae in the POSCO Act:

While there were several issues pertaining to the implementation of the POSCO Act, the three main lacunae are age of consent, incumbent reporting and determination of the ages of the victim as well the perpetrator.

As according to the act, all sexual acts are criminal offences if the victim is under the age of 18 years. [10]The law criminalises sexual behaviour for those under the age of 18 and there is no sexual autonomy given to those below 18, which gives birth to complications in cases of consensual sex between two minors, where the victim and the perpetrator become synonymous since they are liable for violating the law which obdurately criminalises sexual activity between minors. There is tension between the letter of the law and the spirit of the law as criminalizing such behaviour would not serve the purpose of the enactment and the notion that the state can restrict individual autonomy on sexual behaviour was rejected.[11]

Pertaining to incumbent or mandatory reporting of child sexual abuse, three main issues arise, which are-

  1. Criminalizing sexual behaviour for those below 18 has led to the problem of health professionals, counsellors, etc. being disinclined to treat the effects of unsafe sexual practices as reporting such behaviour to the authorities breaches the confidentiality of the patient and also leads to the health professionals’ involvement in the case.
  2. The breach of trust would affect the efforts of those institutions and organizations working with backword communities and young people as the communication and relationship with them is placed on trust and the legal duty to report any knowledge of consensual, underage sexual behaviour jeopardises the efforts of those organizations to communicate, educate and work with young people.
  3. There is also the issue of who is responsible for the enforceability of this legal duty. Imposing a legal duty with sanction without a proper structure for its enforcement results in cases of failure to report being overlooked.[12]

Determination of the ages of the victim and the offender is tangled as there are no bona fide guidelines on how to do so. In India, a large proportion of births are not registered andage determination without birth certificates and other official documents is difficult and the measure of constructing a special medical team or board for determining the age cannot be the only conclusive facet. This poses a problem as the ages of both the victim and the perpetrator is important in determining the outcome at the investigation and trial stages under POSCO.

Conclusion:

Child sexual abuse is a very significant problem in India and the enactment of the protection of Children from Sexual Offences Act was a commendable move on behalf of the government of India. This legislation has many distinctive provisions and has made a noteworthy contribution to tackle the problem of sexual abuse of the innocent. With the expeditious increase in the number of child sexual abuse cases being reported, there is no doubt that POSCO has significantly contributed to educating the masses about sexual abuse of children, has accelerated the investigation and trial stages of the offences and has ensured that the trials are held in a sensitive manner, so as to reduce the trauma of the victim. Overall, the law is unique and lucid, but the issues identified can create latent problems, pertaining to the implementation of the law. While the government has enacted a significant legislation to tackle the problem of child sexual abuse, it is paramount to realize that the people of this country are also responsible to provide as safe an environment as they can for children and to make sure that a victim of child abuse does not feel inferior or frightened by building an approachable perspective so as to ensure that the victim does not feel hesitant to talk about the problem they are facing.

 

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Isiri Rajaneesh is a second-year law student, pursuing a BA.LLB [Hons]. at PES University, Outer Ring Road Campus in Bengaluru

 

————

 

[1] David K. Carson, Jennifer M. Foster & Nishi Tripathi, Child Sexual Abuse in India: Current issues and Research, PSYCHOLOGICAL STUDIES (Aug 14,2013), https://www.researchgate.net/publication/271951215

[2] Ibid

[3] Belur, J., Singh, B.B., Child Sexual Abuse and the law in India: a commentary, CRIME SCIENCE 4 (Oct 9, 2015), https://doi.org/10.1186/s40163-015-0037-2

[4] Ibid

[5] Ibid

[6] Ibid

[7] Legal Service India, http://www.legalserviceindia.com/legal/article-4985-child-sexual-abuse-in-india.html

[8] Belur, J., Singh, B.B., Child Sexual Abuse and the law in India: a commentary, CRIME SCIENCE 4 (Oct 9, 2015), https://doi.org/10.1186/s40163-015-0037-2

[9] Ibid

[10] Ibid

[11] Ibid

[12] Ibid

 

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Analysis of Insurance laws in India and UAE

By:- Khushi Sharma

Abstract:

Banking can be described as the activities such as depositing and protecting the capital of people and several business organizations and ultimately returning the money as per the wants of the depositors. The term insurance means the process in which the insurer agrees to make good the loss of the insured. There are several types of insurance like life insurance, health insurance etc. For the smooth functioning of banks and financial institutions there are various rules and regulations formed by the legislature. These rules regulate the working of banks and other financial institutions. The banks like any other entity are under the obligation to follow various central and state regulations. The banks majorly deals with the different transactions that takes place on daily basis whereas the financial institutions majorly deals in serving customers to build their businesses. The banking laws are formulated with a view to regulate the lawful fulfillment of the duties allotted to the banks. The insurance laws on the other hand deals with the formation and execution of the Insurance contracts made between the parties.

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Introduction:

The banking system plays a very important role in maintaining the economy and financial strength of a country. In the time, where the world is dynamic in nature, the developing countries wants to become developed and already developed ones are eager to rise higher. It is important to note that for the overall growth of any country, a properly functioning banking system is a major requirement. The banking system becomes a pillar in the development of the nation and its economical position. Nonetheless, banks also play a role of financial supporter of the people of the country.

Insurance can be aptly defined as an armor to decrease or completely eliminate the risk attached to one’s life and property. Under the agreement of insurance, the insurer promises the insured to make up for the loss faced by the insured in exchange of an alleged premium fee. The risk against which a person can be insured includes the risk of death,fire,theft,damage etc. Any person can be protected against these risks on the payment of a premium proportionate with the risk involved. Insurance laws are those statutes which deals in policies and claims of insurance.

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Banking Laws in India:

In India, the laws for the administration and functioning of banks were formulated in the year 1949, two years after Independence. They enacted on 16th March,1949 and changed the whole banking system. Due to globalization and development of the businesses and trade, the banking institutions in India were becoming the main focus of the time.

In the British era, the most earlier improvement in the system took place with the foundation of Calcutta bank in 1806 followed by the Mumbai bank in 1867. Emperor bank came into existence in 1920, as a result of which the three banks were united with the position of President of Calcutta, Madison and Massa by the laws of the Bank of India.

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Insurance Laws in India:

In 1912, the very first statute to regulate the life insurance business came into being and was termed as the Indian Life Assurance Companies Act,1912. Then an act of wider scope formed which enacted for all types of insurance and to formulate strict rules for the insurance business.This was called the Insurance Act of 1938. Due to the Life Insurance Corporation Act,all the 245 insurance agencies working in India were converted into one entity in 1956 and called the Life Insurance Corporation of India. In the year 1972 every insurance company was merged into National Insurance, New India Assurance, Oriental Insurance and United India Insurance which had there headquaters in the metropolitan areas. Till the year 1999, no private insurance agency was left in India. The legislature formulated the Insurance Regulatory and Development Authority Act in 1999 which ultimately permitted the private businesses to carry on the insurance business. Further, the foreign investment was also permitted. The constraint to the FDI in the insurance sector was raised to 49% in the year 2015, subject to some conditions.

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Insurance Laws in UAE:

  • The nature of UAE in insurance market

In the Gulf Cooperation Council (GCC), the United Arab Emirates insurance market is the largest. In UAE there are three jurisdictions for insurance; namely the Onshore UAE market, the Abu Dhabi Global Market(ADGM) and the Dubai International Financial Centre(DIFC). In recent years, the Islamic insurance market is also growing within the UAE. The alternative system for cooperative islamic insurance is the Takaful Insurance that is also found there.

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  • The Insurance Regulator

The insurance market of UAE is regulated by the Insurance Authority(IA) which regulates the onshore insurance business. The IA was established in 2007 and the scope of its governance includes insurance and reinsurance companies, entities and intermediaries located in UAE. The UAE cabinet, recently passed an order in October,2020 for the IA to merge with the UAE Central bank. In January 2021, the Central Bank announced that it will take up the regulatory and supervisory responsibility of the insurance sector. Thus we can expect further changes and developments in the insurance sector of UAE in coming years.

Some important provisions of the Insurance law of UAE are worth mentioning-

  • Article 7 of the Insurance law talks about the responsibilities of the Insurance Authority.
  • Article 8 provides for the constitution of Insurance Authority and that it must include one board, director general and executive body.
  • Article 24 states the various forms of companies that are entitled to carry out insurance and reinsurance activities in the UAE.
  • Article 26 of the act talks about the limitations of the insurance companies. It protects the UAE properties from being insured outside the country.

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Conclusion:

In the era of development and globalization, banking and insurance is the basic need of every country around the world for carrying on its activities globally and develop with the competitor countries. As globalization is increasing with an increase in the technology across the globe, the frauds that are taking place has also raised in number especially those dealing with the banking and insurance industry. All people should deal carefully to avoid risks and get insured for any unforeseen event. Insurance can be aptly defined as an armor to decrease or completely eliminate the risk attached to one’s life and property. Also one must be aware of the laws governing the insurance and its policies before getting one from the provider in order to get the maximum benefit of it. Insurance and banking sectors have come a long way in India and provides ample services at convinient fee which is accessible by the middle class people of the nation. The comparison of Indian and UAE insurance laws shows that both countries have their own way of functioning but the aim is common of both the countries. Insurance sector has come a long way and it still has a long way to go in future.

Categories
Blog Intellectual Property Law

How to file a Patent in India?

By: Ayushee Subhadarshini

As it is said an invention is not your own until it is patented- so what is patent? How do we patent our invention? The simple answer to this is patent is the Exclusive legal right given to the inventor so as to protect its invention. we may say that it is a form of intellectual property. Basically, it is a title given to the owner of the invention for a certain time period which protects and secures the invention from any third party interference. In order to get a patent the inventor in return has to disclose all the information of the product, method, process, research etc of the invention.

Patents can be a three types- utility patent, design patent and plant patent. In utility patent the invention may be a product or process and it can be patented for up to 20 years .For example, engines of automobiles. Design patent it is a kind of registration in which the appearance of a particular design is patented it may be extended for up to 15 years. For example, logo of a brand (Note- design patent only count for appearance and not any functional aspect) .Plant patent is not found in India. In this if a farmer crossbreeds and produces a new variety of plant it may be patented.

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A big question arises on what can be patented- first a process or method can be patented .a new process which may be short, more efficient and user-friendly, which may give good quality products can be patented. Second a composition can also be patented like combination of certain substances or an active ingredient with other substances or mixture of certain elements or chemicals or substances. Therefore any useful composition is patentable. The third one is research .a research on some product process or approach can also be patented because this research might be used while making a product so it is patentable.

There are certain criteria which are needed for patenting. The invention must be new or novel. it should be of total originality ,it should not be found anywhere in the world .it should be an inventive step .either it may have some Technical Advancement some economic significance or both etc. it should be an inventive product the product; should be capable of industrial application in essence it should be fit for use in industries.

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Now there are inventions which cannot be patented.[1] Section 3 and 4 of Indian Patent Act 1970 lists out non patentable subject matter like scientific discoveries ,living beings ,plants ,animals ,organisms, new form of known substances ,mere addictive combination, traditional knowledge ,business methods ,mathematical methods and atomic energy etc.

There are certain procedures which are needed to be followed for getting a patent granted:

First the complete concept or idea of the invention should be written down in detail. it should include what is the invention or Idea, its working mechanism, how the invention helps in solving a problem ,the field of the invention, advantages of it ,elements or objects or composition involved in it ,any competitors of the invention etc.

If the invention includes research then the lab record should also be included. Visual illustrations play an important role- so sketches drawings, charts; diagrams should be designed to explain the working mechanism of the invention. As we know that all inventions cannot be patented so checking upon patentability is a very important step.

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Second step includes the drafting of patent application. as we know that a patent has both technical and legal aspects, for drafting a patent application it requires a lot of skills and practice .filing it on own would be a huge mistake as it might cause hindrance in the opportunity. this being the most crucial step requires a good patent agent or an attorney who will not only file the application but would stay and supervisor in the whole process like till the commercialization phase where the real money comes in by providing license or by selling the patent rights .this step costs depending on the fees of patent attorney or agent and it may require a time period of 8 to 15 working days.

After the drafting and reviewing of application by the inventor the patent is filed in a government office where a receipt is generated with an application number. there are three types of applications which can be filed in the patent office- the first one is the provisional application which is filed at an early stage of the research or development of the invention, it secures the filing date, 12 months is provided for giving the complete specifications and it is low in cost .the complete patent application is drafted when all the necessities and specifications required are available to file a patent. The international patent application provides protection to patent rights outside the country as well because as we know that patents are territorial in nature it can only be secured inside the country.

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Fourth step includes an examination request where an examiner is appointed by the controller to review the patent application only after receiving the request for examination .The examination report is generated after the review .it is a kind of prosecution where the patent application is prosecuted at every step before the grant of patent.

Fifth step includes the response to the objections. Mainly patent applications receive some or the other kind of objection in the examination report .the patent agent or attorney may give a written response to the objections raised. After analyzing it, if the objection is still not resolved then a meeting or communication of any kind is set up between the inventor with the examiner in the presence of attorney to clear up the objection.

In the sixth step the application is placed in order for grant. Once it meets all the patents criteria and is cleared of any hindrance the patent is granted.

There are certain advantages of filing a patent:

  • A patent certainly gives protection to the invention and stops others from copying it.
  • It also helps to protect it from competition at early stages of invention.
  • It can also be used as a source of revenue by selling the patent rights or by providing license one can collect royalties from it.
  • A premium can also be charged for an invention because it is unique and no one else’s making it.
  • It gives more credit profit to an inventor and their company as well.

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Being advantageous at times there are also certain disadvantages of a patent:

  • Makes the invention a public record i.e., information of it is publicly available .rather than keeping it a secret may help to stay afar from competitors.
  • Applying for a patent is time consuming during which the certain invention may become outdated.
  • For filing an application ,patent agent or attorney is required who charge heavy amount .putting money somewhere where the probability of getting the result is not a short is not a good move.
  • Patents are time specific -filing dates, Annual fees all must be checked accordingly or it may get cancelled anytime.
  • The territorial nature of patent provides service to exposure outside the country.

Landmark cases on Patent in India:

[2]Bajaj Auto Limited versus TVS Motors Company – in this case the defendants infringed the patent which concerns the invention of the technology of improved internal combustion engines of the plaintiff.      This case is important as it also includes the doctrine of pith and substance.

[3]Novartis AG vs. Union of India- in this case Novartis filed patent application for its new version of cancer drug that is glivec. The case was regarding the filing of patent application for a new version of a known drug molecule. This is prohibited under Section 3(d) of Indian Patents Act, 1970. since the existing drugs patent has already expired the generic version which is also cheaper in cost is permissible for supply. so the application for leave it is rejected.

[4] F. Hoffmann-La Roche Ltd. & Anr. v. Cipla Ltd-In this case the plaintiff filed a suit for injunction, for curbing infringement and for claiming damages .The defendant argued that the drug was for treatment of cancer and was a derivative of parent drug, the composition was same except for one alternative .This was upheld in the Supreme Court.

Section 118-124 of the Patents Act,1970 provides provisions of penalties.

Section 108 of the Patents Act,1970 provides provisions for relief.

                     Act                                                 Punishment

Contravention of secrecy provisions  relating to certain inventions Imprisonment up to 2years or fine or both
Falsification of entries in register,etc Imprisonment up to 2 years or fine or both
Unauthorized claim of Patents  rights Fine up to 1-lakh rupees
Wrongful use of words “patent office” Imprisonment up to 6 months or fine or both
Refusal or failure to supply information Fine up to 10-laks or imprisonment up to 6 months or both
Practice by non-registered patent agents Fine up to 1-lakh rupees, up to 5 lakhs in second offence.
Offence by companies Liable for proceedings, punished accordingly.

           

RELIEF IN AN ACTION FOR INFRINGEMENT

 

PATENT OFFICES IN INDIA

PATENT OFFICE TERRITORIAL JURISDICTION
Mumbai The States of Gujarat, Maharashtra, Madhya Pradesh, Goa, Chhattisgarh, the Union Territories of Daman & Diu and Dadra & Nagar Haveli

 
Delhi The States of Haryana, Himachal Pradesh, Jammu and Kashmir, Punjab, Rajasthan, Uttar Pradesh, Uttarakhand, National Capital Territory of Delhi and the Union Territory of Chandigarh
Chennai

 

 

 

Kolkata

 The States of Andhra Pradesh, Karnataka, Kerala, Tamil Nadu, Telangana and the Union Territories of Pondicherry and Lakshadweep.

 

Rest of India (States of Bihar, Jharkhand,

Orissa, West Bengal, Sikkim, Assam, Meghalaya, Manipur, Tripura, Nagaland, Arunachal Pradesh and Union Territory of Andaman and Nicobar Islands)

 

 

 

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Conclusion

Patent filing may seem a long and complex process but one should always remember the importance of a patent. Patent would always ensure that no third party can claim your rights without permission and order. Legal bodies are always out there to help people when necessary. An intelligent approach matters the most while filing a patent. With technological and digital advancements patent filing may become easier day by day. Make in India has a real significance over patents. We should not only encourage inventions and grant them patent, it also signifies the product to work in India. This helps in building up of the economy. It helps in more turnover for businesses, more credibility and many more to it.

[1] Indian Patent Act 1970

[2] MIPR 2008 (1) 217

[3] (2007) 4MLJ 1153

[4] I.A 642/2008 in CS (OS) 89/2008

Categories
Blog

Analysis of the new OTT rules and code for digital and social media apps

By: Ayushee Subhadarshini

In the emerging days of technological advancements, the online platforms have leveled up their games to the next level. The platforms like Social media and over-the-top (OTT) services provide so much content to the audience directly through internet. Staying at homes during the pandemic has become easier through these platforms. People create content, share their opinions and views, binge watch series and movies, educate people and also help in promoting online businesses. A large group of people are getting the opportunity to avail these services. The fast increasing advancement of the digital world has helped the world in great ways, but there are also certain ways by which these platforms are being misused by a large part of the society.

Looking forward to the rising influence of OTT in India the platforms have acquired a large share of the entertainment market. Not only the content they provide but the opportunity they serve. OTTs have given a large opportunity to the small growing production houses as well who deal with scripts which show the reality of today’s world and the problems faced by common man. The OTT services were mostly enjoyed by people because it gave them a comfort at their homes, until the government tried to put its hands in the regulations of these services. The government issued notification regarding the Intermediaries and Digital Media ethics rule, 2021 after the harsh reality of the Indian culture was hit on the face of Nationalists. Their views reflected how the Indian Culture has been defamed through these platforms.

In 2018 a committee was formed which included secretaries from various prominent departments to bring about changes in certain rules and regulations for these online platforms after wide field of research on the regulations internationally as well. This committee was formed after the case of Prajwala vs. Union of India where the Supreme Court observed that there is a need to regulate the contents provided in these OTT platforms like to stamp out the contents which include pornography, abuse, rape, nudity, violent and aggressive display which in turn may cause harm to the society and spread hatred. Tehseen S. Poonawalla case, the SC gave the government full freedom to eliminate the “irresponsible and explosive messages on various social media platforms, which have a tendency to incite mob violence and lynching of any kind” In 2021, the ministry of electronics and Information Technology and the ministry of broadcasting released notification regarding the new guidelines. The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021.This was done by the government under Section87 of the IT Act, 2000.So putting some light on the previous rules and regulations related to digital media and OTT platforms.

So basically this has been divided into three categories -the first part consists of the definitions ,the second part is regarding the due diligence by the intermediaries and, the third part deals with the code of ethics and procedure and safeguards in relation to the digital media The due diligence of the intermediaries include the following;

  • The platforms should provide the users all the terms and conditions of the use of such platforms as well as lay down all the rules and privacy policies to the user so as to keep a check and record of the access.
  • the intermediaries should within 24 hours of receipt of complain take measures and actions which are reasonable to eliminate or disable such content which exposes the private areas of a person shows partial or complete nudity or shows any sexual act or conduct or any type of content with viruses threatens abusers any individual
  • The intermediary should retain registration information of a user for six months after cancellation of registration.

Besides due diligence of intermediaries many additional guidelines have also been issued regarding the social media intermediaries. These are like appointment of Chief Complaint Officer who shall be a resident of India, who would ensure the compliance with it rules and the appointment of a Nodal contact person who is required to co-ordinate with the law enforcing Agencies all the time .It should also appoint a grievance officer who shall be a resident of India it also States to report mentioning the Complaints and actions. The OTT platforms also need to classify their content into mainly five categories which is according to the age group -U (Unrestricted),U/A 7+ (Unrestricted Public exhibition subject to parental guidance for children below the age of 7),U/A 13+ (Unrestricted Public exhibition subject to parental guidance for children below the age of 13),U/A 16+ (Unrestricted Public exhibition subject to parental guidance for children below the age of 16),An (Adult).The guidelines also regulate the need of parental locks so as to restrict the people of certain category to get access to some matured content. Moreover the new guidelines also provide for Grievance Redressal mechanism in which an officer will address the issues which should be raised reasonably within 24 hours and should be solved within 15 days. A three-tier Grievance Redressal mechanism would help to deal with the complaints of the content in which the first tier would be self-regulation by the publishers the second would be self- regulation by the Self-Regulating bodies of the Publishers and the last would be an oversight mechanism by the central government in which the Ministry of Information and Broadcasting will establish an Inter-Departmental Committee to hear grievances not addressed by self-regulating bodies and also oversee adherence to the code of ethics. The digital media publishers are also required to follow the norms of Journalistic conduct of the press council of India and also the Programme codes of cable TV networks so as to ensure their spheres and limits of offline and online platforms.

Though there are certainly bright sides of this Act, but somehow it is felt that it curbs the democracy of the country as it restricts the freedom of expression. If the government thinks that certain contents are there which violates the peace and harmony of the nation then it can struck down the content. Obviously this puts a ban on free flow of information on online platforms. Certain privacy concerns would also arise as right to privacy now comes under the ambit of Article 21 that provides right to life to all. The provision in the act which mentions about the identification of the content creator would raise concerns for privacy. Unfair acts arising out of these can create a lot of problems. Moreover when certain guidelines are created they are for the people and by the people. While drafting these rules no professional from digital platform was asked to recommend or consult in the matter rather it was a decision taken by the government.

Conclusion

As there are always two sides to a coin, certainly the rules made have both pros and cons. It reflects the values and virtues of the society at large. Though India being a democratic country we can see how it contradicts the concept by restricting certain rights. We should see how the citizens and the government comply with these rules.

 

Categories
Blog Intellectual Property Law

The Exordium of Copyright System in UK

By: Himali Sylvester

Introduction

 It has often been espoused that homo sapiens are inherently ‘possessive’ in nature. In other words, it could be said that human beings are born with the unique ability of ‘claiming’ possession over materials. It was not too long ago that the discourse of property and possession unfolded. The two erudite minds in the 17th century, Jean Jacques Rousseau and John Locke both discussed property in starkly different ways. Rousseau contemplated that the need for property is not an inherent human characteristic and that it is a product of ‘general will’ sanctioned by the State.[1] On the other hand, John Locke strongly condoned that those human beings in the state of nature are governed by human reasoning with a deep-seated need to assert control over what they believed to be their own.

Consequently, when this certain ‘own’ was taken away from an individual, she felt the need to protect it and therewith arose the concept of ‘right’. Such individual right received the consent of the community and became moral right and eventually, with the sanction of the state, such right transcended to become a legal right. For a large part of history however, the idea or notion of possession was confined to only tangible objects -to actual physical possession -to that which a man might pass from hand to hand. It is only in the dawn of history, with the palpable advent of literature and printer, that rights over intangible property came to be realised.

The Greeks

The Greek contribution to drama and literature cannot be undermined. One cannot help but be reminded of Homer and the rhapsodists who cannot ever fade from human memory. It must however, be prudently noted that rhapsodists published their poems by word of mouth and the spoken poem flew away with the voice of the speaker and lingered only in the memory. Even when the poems and proses were translated to writing, after paper made it possible to preserve the labours of the poet and the historian, these authors had not any thought of making money by multiplying copies of their works, yet. The dramatists in Rome felt quite content with the compensation they had received and thus, the question of rights over the theatrical performance did not particularly arise. At the time, there was a notable trend of transcribing drama into text and of making copies of popular proses. While authors complained about the mangled translations, they still hadn’t realised that wide-spread copying and transcription of their intellect was in some way a moral wrong. In fact, some authors considered it a matter of ‘honour’ to allow their literary labour to be widely circulated.

 

Advent of the Printing Press

It was only after Gutenberg had set up as a printer, that the possibility of definite profit from the sale of the works of the author became visible to the author. Until then authors had felt no sense of wrong. With the invention of printing, there was a chance of profit and as soon as the author saw that this profit diminished by an unauthorised reprint of her work, she felt conscious of the injury caused and thus, protested against it in as many ways as possible. With time, public will be inclined towards the authors and some sort protection was granted to them in the form of ‘copyrights’, by penalising ones that seek unauthorised copies of an author’s work.

The World Order

Traces of copyright grants can be seen in many European states, i.e the then divided continental Europe. The Senate of Venice issued an order, in 1469, that John of Spira should have the exclusive right for five years to print the epistles of Cicero and of Pliny[2]. This privilege was an exceptional exercise of the power of the sovereign state to protect the meritorious work of a worthy citizen. It granted only a limited protection for about two literary works. But it established a precedent. A precedent which has been carried down over centuries so much so that for four hundred years now, any book published in Venice is, by international conventions, protected from pillage for a period of at least fifty years.

In 1491, Venice gave Peter of Ravenna, and the publisher of his choice, the exclusive right to print and sell his Phamnix,3-the first recorded instance of a copyright awarded directly to an author. Germany issued its first copyright at Nuremberg in I501. France covered that privilege only for one edition of a book and if the book was sent for a next edition, a second patent had to be obtained.

Early Days of England

The King’s supremacy in England accorded certain privileges to authors and publicists that the sovereign considered sacred and important. In 1518, the King’s Printer by the name Richard Pynson, issued the first book cum privilegio. The book’s title page declared that no one else should print or import in England any other copies for two years. Further, in I530, a privilege for seven years was granted to John Palsgrave as commensuration for the value of his work and the time spent on it. This event has been noted as the first recognition of the nature of copyright as furnishing a reward to the author for his labor in England.

Wynkyn de Worde in the year 1533 procured the sovereign’s protection for the second edition of his book, Witinton’s Grammar. Ten years prior to that, the first edition of Worde’s book had been released which during the decade had again been reprinted by Peter Trevers without authorisation. Protesting against the despoilment, Worde in his subsequent editions vigorously condemned Trevers’ actions and on account of that, Worde applied and secured protection for his works. This is another notable example of copyrights unfolding in England.

Timeline of Statutory Development

Details

 Dates

Star Chamber Decree supporting copyright

1637

Ordinance of the Commonwealth concerning licensing was pronounced. Copyright was subordinate to political objects.

1643
Licensing Act

The Act enacted gives copyright coupled with license.

1662

British Statute of Anne

First Copyright Act was enacted. Copyright to be for fourteen years, and if author then alive, for fourteen years more. Conjointly, the author possessed the power to regulate price

   1710
Copyright to be for twenty-eight years absolutely, and further for the life of the author, if alive

1812

Fine Arts Copyright Act

Copyright to be for the life of the author and seven years longer, or for forty-two years, whichever term last expires.

1842

The Copyright Act

1911

 

Statutory Development

The Printers and Binders Act,1534, banned the import of foreign works and enabled the Lord Chancellor to limit the price of books. A charter was granted by Philip and Mary in 1556, intending to prevent the propagation of the Protestant Reformation. The Stationers’ Company received its Royal Charter which gave the company the power to decree who could print books. It also granted the company the right to seize illicit or pirated works[3]. Further censorship was introduced by Henry VIII who required that all books should be approved before publication.

In another instance, the famous ‘Decree of Star Chamber concerning printing’ issued in I637 set forth the following:

‘that no person or persons whatsoever shall at any time print or cause to be imprinted any book or pamphlet whatsoever, unless the same book or pamphlet, and also all and every the titles, epistles, prefaces, poems, preambles, introductions, tables, dedications and other matters and things whatsoever thereunto annexed, or therewith imprinted, shall be first lawfully licensed.’

  1. Licensing Act

The Licensing Act of 1662 conferred upon the company the right to sue for any infringement.

To bestow such a right, a register of licensed books was maintained wherein certain members were accorded the powers to search and seize books that were not licensed. Understandably, the Licensing Act could not operate for too long as it failed to distinguish between intellectual piracy and physical piracy.

  1. British Statute of Anne

With the enactment of the Statute of Anne, 1710, first time in British history, ‘copyright’ was statutorily recognised as a legal right. It afforded security and entitlement upon authors with the intention of promoting extensive learning.

Key requisites of the Act 

  1. As per the provisions of the Act, the Author of a book yet to be printed shall have the sole right printing for 14 years and if the author survives the 14 years, an additional 14 years of the aforesaid right shall be granted to him.
  2. Infringers must forfeit the infringing books found in their custody and shall be fined with half amount to be paid to the crown and the other half to the plaintiff.
  3. Only books entered for publication in the ‘Register Book’ of Stationer’s Company can be sued for infringement.

Precedents

  1. Bach v. Longman[4]

Brief Facts – The case discussed on the issue of whether or not printed music fell within the purview of copyright protection as conferred by the Statute of Anne.

Ratio Decidendi- It was held by the Court that printed music fell perfectly within the scope of protection granted by the Statute of Anne.

  1. Gyles v. Wilcox[5]

Ratio Decidendi – The doctrine of fair abridgement was propounded for the first time in UK history. The main discourse in the case revolved around whether or not an abridgement of copyright inherently constituted copyright infringement, or whether they could qualify as a separate, new or derivative work. The Justice ruled that abridgement fell under two categories:

  1. True abridgements
  2. Coloured shortenings

True abridgements include a genuine effort shown on the part of the editor to constitute a new work which is not intended to infringe upon the copyright of the original.

  1. Walter v. Lane

Brief Facts – Certain reporters working for The Times newspaper took down some notes during a series of speeches delivered by the Earl of Rosemary, a renowned politician.  The verbatim speeches were then transcribed and published in the newspaper, The Times.  Using these published speeches with verbatim quotes from the paper edition, the respondent published a book. The issue was whether journalists have copyrights.

Ratio decidendi – The court held that the reporters were authors under the Copyright Act 1842. The effort, skill and time that spent was sufficient to make them original. According to Lord Brampton, writing reports required considerable intellectual skill and labour beyond the mere mechanical operation of writing.

  1. Fine Arts Copyright Act and Copyrights Act

As the name suggests, the Fine Arts Copyrights Act extended the terms of copyright to fine arts as well. Fine arts would include music, dance, paintings etc. Successively, the Copyright Act of 1911 was passed which consolidated all protections with respect to the Berne Convention and the salient features of Act included:

  1. Extension of term of copyright to life and 50 years posthumously.
  2. The need to register in the ‘Register of Stationers’ to receive protection was done away with
  3. Work that remained unpublished is also entitled to protection
  4. The Act includes all forms of arts such as literature, painting, music, photography etc.

Current Regime

  1. Copyright, Designs and Patents Act, 1988

Currently, copyrights in UK is governed by the Copyright, Designs and Patents Act enacted in 1988. For copyright to subsist the literary, dramatic, musical and artistic work must adhere to the ‘originality’ criterion. Obviously, such work should not be copied from another and must be produced based on individual skill, judgement and own work. Additionally, the work must be recorded in writing and must meet the UK qualification of nationality of the author or the requisite of ‘place of first publication’. The copyright should not have already expired.

It has often been said that the aforementioned statute provides a close list of works that can claim copyright. However, in the decision of Brompton Bicycle Ltd. v. Chedech[6] it was held that a close list may not always be efficacious in the protection and enforcement of copyright. In another landmark case of Express Newspapers v. News (UK) Ltd[7] , the precedent set in Walter v. Lane was upheld, reiterating that journalists are also authors. 

  1. Duration of Copyright Protection

 Terms of protection include:

  1. For literary, dramatic, musical and artistic works for a period of the author’s life and 70 years after her/his death.
  2. For computer generated literary, dramatic, musical and artistic works copyrights subsists for 50 years from the end of the calendar year in which the work was made.
  • In a film the copyright expires 70 years after the last date in the calendar year of the death of the principal director, the author of the screen play and the composer of music, if any in the movie.
  1. Copyright in a sound recording ends 50 years from the last day in the calendar year that it was published.
  2. Copyright in broadcast also subsists fro 50 years from the end of calendar year in which it was published.
  3. Copyright in the typographical arrangement of published edition expires at the end of 25 years from the end of calendar in which the edition was first published.

Landmark Case Law pertaining to a Current Discourse

Temple Island Collections Ltd v New English Teas Ltd[8]

Brief facts – The Claimant’s photograph was a picture of a bright red bus with the Houses of Parliament and Big Ben in black and white in the backdrop. Additionally, Westminster Bridge, and the river in black and white was present in the foreground. The Defendant used a similar photograph in their souvenir products, just that the picture was taken from a different angle. The claimants sued the defendants for infringement of copyrights.

Judgement – Judge Birss found that the Defendant’s photograph infringed the Claimant’s copyright in its photograph.

Discourse – The decision raised several questions in the legal fraternity and its potential impact on what is known as the stark difference between idea and expression. The English Courts have recognised a principle in copyright cases which embraces the idea that a line should be drawn between the idea behind a work, which tends not to be protected by copyright, and the expression of that idea, which can be protected.  It has often been contended by many commentators hat, in the aforementioned circumstance it was the idea that was similar and not the expression of it and hence, the defendants cannot be sued for copyright violation.

Conclusion

The copyright system adopted by UK dates back to a gradual development and evolution that took place over many centuries. The current system is an aggregate and consolidation of various principles, ideas and rules that evolved overtime to protect the intellectual labour of creative authors and it is no doubt that it was the English-speaking race that persevered for the first time to change the special privilege of copyright to a statutory right that today governs all ‘useful works of art’.

 

[1] Matt Schrage, Rousseau and Locke on property and state, MODERN POLITICAL THOUGHT (Apr. 17, 2021, 9:50 PM IST), https://blogs.harvard.edu/mattschrage/2018/04/26/rousseau-and-locke-on-property-and-the-state/.

[2] Brander Matthews, The evolution of copyright, JSTOR (11-04-2021 21:48 UTC ), https://www.jstor.org/stable/2139530.

[3] The UK Copyright Service, https://copyrightservice.co.uk/copyright/history-copyright (last visited Apr.17, 2021).

[4] 2 Cowper 623 (1777).

[5] (1740) 26 ER 489.

 

 

 

Categories
Blog Intellectual Property Law

Trademark Dilution

By: Muskan Sharma

Introduction

Trademark Dilution is an act when someone uses a trademark, without any authority, that tarnishes or blurs the image of a famous mark. Dilution is a type of violation of a trademark, in which the defendant’s use, though not causing the likelihood of confusion, blurs distinctiveness or tarnishes the image of the plaintiff’s famous mark. The protection provided by Section 29(4) of the Trademarks Act, 1999, to the dissimilar goods and services, is based upon the ‘doctrine of dilution’.

The irony is that the expression ‘dilution’ has not been used expressly anywhere in the Trademarks Act, 1999. A plain reading of Section 29(4) of the Trademarks Act, 1999 reveals that a person infringes an already registered trademark if he, not being a person authorized with the permitted use, uses a trademark which—

  1. is similar to or identical with the already registered trademark, and
  2. is used to represent those goods and services which are way different from those for which the trademark was first registered, and
  • the registered trademark is a famous mark, and
  1. is detrimental to the distinctive characteristics of the registered trademark.

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Importance of Doctrine of Dilution

The purpose behind the protection of trademarks is to avoid weakening or dilution of trademarks. If the subsequent user resorts to the use of the similar or near the similar mark in respect of the same goods or services, it would not only decrease the value of the famous mark i.e. trademark of the prior user but ultimately result in dilution of the mark itself. Such an invasion made by the subsequent user is nothing but a commercial invasion. It may yield greater profits to the subsequent user for sometime but will harm the market in the long run.

A Trademark is like a property and no unauthorized person is allowed to commit trespass on it. Such a kind of dilution or weakening of the famous mark, therefore, need not be accompanied by the element of confusion.

In Caterpillar Inc. v. Mehtab Ahmed[1], the Delhi High Court has highlighted the importance of the ‘Doctrine of Dilution’. The Delhi High Court observed:

“So far as doctrine of dilution is concerned, it is an independent and distinct doctrine. The underlying object of this doctrine is that there is presumption that the relevant customers start associating the mark or trade mark with a new and different source. It results in smearing or partially affecting the descriptive link between the mark of the prior user and its goods. In other words, the link between the mark and the goods is blurred. It amounts to not only reducing the force or value of the trade mark but also it gradually tapers the commercial value of the marks slice by slice. Such kind of dilution is not a fair practice that is expected in trade and commerce”[2].

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Trademark Dilution in India and USA

Indian Courts have recognized the following as essentials of dilution under Section 29(4) of the Trademarks Act, 1999:

  1. The impugned mark should be similar or identical to the injured mark,
  2. The one claiming injury caused by dilution must prove that his trademark is a famous mark,
  • The use of the impugned mark is without any due cause and authorization, and
  1. The use of the impugned mark amounts to taking unfair advantage of the reputation of the famous mark or is detrimental to the distinctive characteristics of the famous mark.

The US Courts have a stricter approach than Indian Courts. In India, the trademark needs to have a reputation whereas according to the US laws, the trademark should be a famous mark. In the US, the user of an averagely well-known trademark cannot claim for dilution of a trademark. A clear distinction has to be made between a mark with a reputation and a famous mark. Dilution rights are indeterminate in nature and therefore, the standard of fame required to claim dilution rights should be high. A trademark that is not distinct and famous cannot be diluted.

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In the USA, the Trademark Dilution Revision Act, 2006 has been enacted to deal with Trademark Dilution. The Act provides that to determine whether the impugned mark satisfies the required degree of fame, the following factors should be taken into account:

  1. The extent, duration, and geographic reach of publicity and advertising of the trademark, whether publicized or advertised by the owner or third party,
  2. The volume, amount, and geographic extent of sale of goods or services offered under the representation of the famous mark,
  • The extent of the recognition of the famous mark, and
  1. Whether the famous mark was registered in some register or under any previous legislation.

Forms of Trademark Dilution

Trademark dilution does not cause confusion and comes mainly into two forms:

  1. Blurring, and
  2. Tarnishment

Take the example of ‘Coca Cola’ and ‘Coke’. Both the names and the shape of the bottle in which the beverage often comes are famous marks. If a third firm markets its product as ‘Coca Cola’, it will lead to ‘trademark infringement’. If a third firm markets its product as ‘Sugary Cola’ in Coke-shaped bottles, it can weaken the uniqueness of the characteristics of the bottle. This will amount to Blurring. However, if another firm sells vodka and label it as ‘Coca Cola Vodka’, it can damage the brand image associated with the name ‘Coca Cola’. It will amount to tarnishment.

Therefore, a conclusion can be drawn that when it affects characteristics associated with the name of a famous brand or a famous mark, it is blurring. However, if the process leads to the weakening of the distinctiveness of the name of the famous brand or famous mark, it is tarnishment.

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Dilution by Blurring

Blurring refers to the subverting of the distinctiveness caused by the unauthorized use of a famous mark on dissimilar products. Blurring takes place when a third party uses a trademark in such a way that it decreases the likelihood that the famous mark will be a unique identifier of the prior registered products and services. It hinders the market growth of the owner of the famous mark being used.

Dilution by Tarnishment

Dilution of a trademark may also be performed by either sullying or impairing a distinctive quality of a trademark of an already existing user. This is usually known as ‘dilution by tarnishment’. The purpose behind such an invasion is to degrade, tarnish, or dilute the distinctive quality of a trademark. For instance, if an attempt is made to communicate an idea that a particular product of a senior user is injurious to the health or is inferior in quality and some epithet is used in the advertisement. If one has to convey the idea that Coca Cola is not good for health, and his advertisement campaign states Drink Cocaine in the same font and script as used by the senior user, he will be considered liable for dilution of a trademark.

The act of dilution of a trademark by way of tarnishment is mostly with regard to strong, well-recognized, and famous trademarks. It has the effect of weakening or diminishing the identification value and strength of the trademark. There is no need to establish the likelihood of confusion with regard to affiliation, source, and connection. This is so as some potential buyers may be confused as to the source or affiliation while others may identify the source or affiliation without any hassle.

Landmark Cases

  • Bata India Ltd. v. M/S. Pyare Lal & Co. Meerut City & Ors.[3]

The Plaintiff company ‘Bata India Ltd.’ came to know about ‘Batafoam’ which used to deal in sofas, cushions, mattresses, and similar items. ‘Batafoam’ was using the name ‘Bata’ in the same form and style and an average customer would’ve mistaken both the trademarks as the same.

The Hon’ble Allahabad High Court held that this action of the defendant of using Bata’s trademark will cause damage to the reputation of the plaintiff. It is a trespass on the right of the plaintiff over the trademark ‘Bata’. Bata’ is neither a fancy name nor a paternal name and not related to the defendant in any case. It is a name well-known in the shoe industry. The Court observed that the defendant is causing not just deception in the minds of the buyers but an injury to the plaintiff as well.

  • Daimler Benz Aktiegesellchaft and Anr Hybo Hindustan[4]

The Delhi High Court observed that the use of the trademark ‘Benz’ for underwear by the defendant whereas the plaintiff has been already using the same trademark ‘Benz’ for cars would be discrimination against the usage of the pre-acquired trademarks by the plaintiffs. The Delhi High Court, therefore, granted the injunction which the plaintiff sought against the defendant.

  • Ford Motor Company CR Borman[5]

In the present case, the question before the Court was whether the use of the trademark ‘Ford’ to represent shoes by the defendant amounts to an infringement of the plaintiff’s right over the famous mark ‘Ford’ to represent automobiles.

The Court observed that the use of a famous mark for two different classes of products also amounts to tarnishment of a trademark. Therefore, the defendant’s action of using the trademark ‘Ford’ to represent shoes does amount to an infringement of the plaintiff’s right over the famous mark ‘Ford’ to represent automobiles.

  • ITC Ltd. v. Philip Morris Products SA[6]

The plaintiff was the owner of the ‘WELCOMEGROUP’ logo containing a device displaying folded hands. In a suit for dilution of trademark, the Hon’ble Court stated that the plaintiff has to pass a more stringent test (than the deceptive similarity standard) of proving similarity or identity. The observed that a global look, rather than a focus only on the mutual elements of the mark, is to be taken while deciding if the impugned or junior mark infringes, by dilution of an existing registered mark. The plaintiff’s mark resembles a ‘W’ but the gesture of ‘Namaste’ is discernible. All the defendant’s previous marks resemble ‘M’ (Maybe Marlboro). Considering the overall marks for the logo, without cataloguing minutely the dissimilarities or similarities, this court discerns no ‘similarity’ or ‘identity’ in the overall presentation of the two marks.

  • Bayerische Motoren Werke AG Om Balajee Automobile (India) Private Limited[7]

In the present suit, the applicant moved an application before the Delhi High Court seeking ad interim injunction against the defendant for using ‘DMW’ mark for e-rickshaws it manufactures. The plaintiff pleaded that ‘BMW’ is a famous mark and represents the existence of ‘Bayerische Motoren Werke’, A German automobile manufacturing company. The defendant used a deceptively similar mark for e-rickshaws. The last two letters of both the trademarks are ‘M’ and ‘W’ and the first letter of both marks ‘B’ and ‘D’ are phonetically similar. Therefore, the mark ‘DMW’ and ‘BMW’ are deceptively similar.

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The Delhi High Court observed that the defendant had adapted to the essential features of the famous mark of the plaintiff and the phonetic and visual resemblance was apparent. ‘DMW’ mark was supposed to cause confusion in the minds of the buyers due to the deceptive similarity between the two.

The Court held that in the case of famous marks like ‘BMW’, the use of a phonetically and visually similar trademark by the defendant does constitute infringement under Section 29(4) of the Trademarks Act, 1999 because it is detrimental to the reputation of plaintiff’s famous mark ‘BMW’. It was further held that the ‘deceptively similar’ standard was not a part of the infringement under Section 29(4) of the Trademarks Act, 1999, and the question of deceptive similarity would not arise in trademark dilution cases.

Conclusion

Trademark Dilution is, therefore, a process of trademark infringement where the subsequent use of a trademark dilutes the essence of a famous mark and uses the diluted mark for his own publicity and advertisement. Trademark dilution can be carried out by two methods namely, Blurring and Tarnishment. The idea behind the protection of famous marks from the process of trademark dilution is to preserve their uniqueness and distinctive characters. It also prevents the birth of confusion in the minds of buyers with respect to the goods and services associated with a brand’s famous mark.

In India, the trademark dilution regime is governed by Section 29(4) of the Trademarks Act, 1999 whereas in the US, the trademark dilution regime is regulated by the Trademark Dilution Revision Act, 2006. In India, there needs to be some level of reputation of the already registered trademark to constitute a case of trademark dilution whereas in the US, the already registered trademark should be a famous one to constitute a case of trademark dilution. The concept of Trademark Dilution under both regimes is similar to a great extent but there are slight distinctions like the standard of ‘reputation’ and ‘fame’.

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[1] 2002 (25) PTC 438 (Del)

[2] Ibid.

[3] AIR 1985 All 242

[4] AIR 1994 Delhi 236

[5] MIPR 2008 (3) 418

[6] 2010 (42) PTC 572 (Del)

[7] CS (COMM) 292/2017

Categories
Blog Intellectual Property Law

IP and MSMEs: The Climacteric Role of Intellectual Property in the Future of MSMEs

By: Rushika M

“Intellectual Property is the oil of the century. Look at the richest men a hundred years ago; they all made their money extracting natural resources or moving them around. All (of) today’s richest men have made their money out of intellectual property.”

-Mark Getty

  1. Introduction

Intellectual property is an important legal and cultural issue.[1] The increasing speed of technological advancement and economic integration in recent years has highlighted the importance of intellectual property[2] and put great stress on the knowledge and ability of persons, businesses and entities to protect their intellectual property rights. One of the sectors of society most affected by its lack of cognizance and perception of intellectual property is the Micro, Small and Medium Enterprises (hereinafter “MSME”) sector. Therefore, the importance and pre-eminence of intellectual property for the MSME sector is the keynote of this article.

  1. What are MSMEs?

As previously mentioned, MSME stands for Micro, Small and Medium Enterprises. As the term suggests, MSMEs essentially refer to small businesses in the private sector. Across the world, regulators and financial institutions apply parameters such as the strength of employees, annual sales valuation, fixed assets valuation, loan size proxies and similar parameters to define MSMEs and classify entities accordingly. Even the World Bank classifies MSMEs based on three criteria: (i) employee strength; (ii) size of assets; and (iii) annual sales.[3]

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In India, the classification of MSMEs is made under the Micro, Small and Medium Enterprises Development Act, 2006 wherein, the three categories of entities are defined under section 6 of the Act,[4] in respect of their investment in Plant and Machinery or Equipment and their turnover value as follows:

  • Enterprises whose investment does not exceed one crore rupees or turnover does not exceed five crore rupees are Micro enterprises;
  • Enterprises whose investment does not exceed ten crore rupees and turnover does not exceed fifty crore rupees are Small enterprises; and
  • Enterprises whose investment does not exceed fifty crore rupees and turnover does not exceed two hundred crore rupees are Medium Enterprises.

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  1. Role of Intellectual Property in MSMEs

Across the world, the MSME sector significantly contributes to socio-economic growth and development of nations. In India alone, an approximation of 6.3 crore MSMEs contribute to 29% of India’s GDP from national and international trade operations.[5] Their contribution to entrepreneurial development and employment in the country is also tremendous. In light of the same, it is of considerable prudence to secure and protect the interests of MSMEs as they are also consequential to the economy at large.

Conventionally, MSMEs have relied on the creation and accumulation of tangible assets such as land, machinery and office equipment, along with their revenue and receivables, to boost their financial standing, valuation and prestige in the industry.[6] However, by dint of scientific and technological developments in the recent past, MSMEs have been catapulted into a quest of an entirely different nature wherein each entity is competing to amass intellectual property of the greatest value. It is hence the actuality of the present day that intellectual property shall play a colossal role in determining the ensuing path of the MSME sector.

Primarily, intellectual property enables MSMEs to protect their ideas and innovations. MSMEs spend large amounts of money, time and resources in the research and development of various works, technologies and products. However, their work is often taken advantage of and commercially exploited as their ideas are copied, or cheap replicas or imitation products are produced and passed off as the product of the MSME or sold by competitors. In either case, MSMEs are the entities that suffer great economic losses and setbacks. Intellectual property rights protect and safeguard MSMEs against these very dangers apprehended, and in cases of violation or infringement of rights, provide MSMEs with adequate remedies and reliefs to secure their interests.

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Secondly, intellectual property allows MSMEs to harness the commercial value of their work in the form of revenue verticals, licensing agreements, further research and development arrangements, etc. thereby allowing MSMEs to recoup their investments and also encouraging further investments in innovation and scientific advancement.[7]

Thirdly, intellectual property plays a significant role in the establishment and promotion of the MSME’s brand identity.[8] Not only does it prevent other entities from imitating the MSMEs creations, it also protects the image of the MSME from being tarnished or impersonated by others. Thus, intellectual property enables MSMEs to retain the authenticity and originality of their identity.

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Further, intellectual property adds to the value chain of business at each level, may it be the stage of ideas and innovations, research and development, or the actual production of the good or commodity. Even at the marketing and distribution level, intellectual property constantly adds value to the product and to that of the MSME. Some intellectual properties hold a greater individual valuation than the sum total of all the other tangible assets of the enterprise combined.[9] Therefore, effective intellectual property management is key to enhancing the corporate and monetary worth of the MSME.

Finally, effective intellectual property management also aids MSMEs in attracting potential investors, in accessing financial resources and in entering new market areas.[10]

  1. Conclusion

From the above, it is evident that intellectual property plays an indispensable role in securing the socio-legal and economic interests of MSMEs. Not only does intellectual property provide a clearly discernable competitive advantage to MSMEs, it is in fact quintessential to the growth and subsistence of MSMEs in the future. Inadequate knowledge and protection of intellectual property could quite possibly result in the closure of various MSMEs as large corporate entities with massive resources dominate the industry and create legal monopolies under the garb of intellectual property protection. Therefore, the acute need of the hour is for MSMEs to recognize and appreciate the role of intellectual property in determining the future of the MSME sector and in preventing its apprehended downfall.

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[1] BCS, The Chartered Institute of IT, “Leaders in Computing: Changing the Digital World” (BCS, The Chartered Institute of IT, 2011)

[2] HE Dr. Talal Abu-Ghazaleh, https://www.talalabughazaleh.com/page.aspx?page_key=key_in_his_word#:~:text=%22The%20increasing%20speed%20of%20technological,effectively%20serve%20the%20global%20community.%22 (last visited April 25, 2021).

[3] International Finance Corporation, “Micro, Small and Medium Enterprise Finance in India”, (International Finance Corporation, 2012). https://openknowledge.worldbank.org/bitstream/handle/10986/26553/114457-WP-IN-MSME-Report-03-01-2013-PUBLIC.pdf?sequence=1&isAllowed=y

[4] Micro, Small and Medium Enterprises Act, 2006, §6, No. 27 of 2006, Acts of Parliament, 2006 (India).

[5] India Brand Equity Foundation, https://www.ibef.org/industry/msme.aspx#:~:text=India%20has%20approximately%206.3%20crore,2.1%20million)%20units%20in%202019 (last visited April 25, 2021).

[6] Rahul Bagga, “Why MSMEs should treat Intellectual Property Rights assets”, Economic Times (April 25, 2021, 11:58 p.m.), https://economictimes.indiatimes.com/small-biz/sme-sector/why-msmes-should-treat-intellectual-property-rights-as-assets/articleshow/69304077.cms?from=mdr

[7] National Institute for Micro, Small and Medium Enterprises, https://nimsme.org/IPR-and-Its-Implications-for-MSMEs (last visited April 25, 2021).

[8] Siddharth Mahajan, “MSMEs must protect their ideas; investment in IP protection is asset not expense”, Financial Express (April 25, 2021, 11:58 p.m.), https://www.financialexpress.com/industry/msme-other-msmes-must-protect-their-ideas-investment-in-ip-protection-is-asset-not-expense/1801781/#:~:text=Intellectual%20Property%20Rights%20(IPRs)%20are,%26%20Medium%20Enterprises%20(MSMEs).

[9] Altacit Global, https://www.altacit.com/resources/ip-management/msmes-and-intellectual-property-rights/ (last visited April 25, 2021).

[10] DK Sinha, “Need of Intellectual Property Rights (IPR) for MSMEs”, Your Article Library (April 25, 2021, 11: 58 p.m.), https://www.yourarticlelibrary.com/law/need-of-intellectual-property-rights-ipr-for-msmes/41149.

Categories
Blog Criminal Law

How to file a Criminal Complaint in India

By:-Muskan Sharma

What is a Criminal Complaint?

A Criminal Complaint is a complaint consisting of such facts and circumstances forming part of the commission of an offence. In India, the Indian Penal Code, 1860 (hereinafter referred to as “IPC”) is the penal law stating all the offences, except as provided under any other law. The Code of Criminal Procedure, 1973 (hereinafter referred to as “CrPC”) is the procedural law that governs the criminal regime from the stage of lodging a criminal complaint to convicting/acquitting the accused person.

Importance of a Criminal Complaint

A Criminal Complaint sets the criminal law regime into motion.

In Emperor v. Khwaja Nazir Ahmed[1], it was observed that an FIR provides early information as to the alleged offence, to record the facts of the case before they are forgotten or glorified, and to provide the same to the Court as evidence for the investigation of the case.

Though FIR is not considered as evidence and has almost nil evidentiary value, it can be used to corroborate the statements of the accused, witnesses, victim, and other persons involved in the offence.

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Therefore, a Criminal complaint serves the following purposes:

  1. Early Disclosure of information as to the commission of an offence.
  2. Prevent the accused from becoming a habitual offender.
  3. Justice to be served to the victim.
  4. Commencement of the investigation as to the commission of the alleged offence.

Information that constitutes an FIR

A Criminal Complaint or an FIR should contain the following information:

  1. Whether the complainant is an eye witness to the incident, heard about the incident, or is a victim himself/herself.
  2. Nature of the offence.
  • Name and other details of the victim (if aware).
  1. Name and other details of the accused (if aware).
  2. Date and time of the occurrence.
  3. Place of the occurrence.
  • Description of the incident as a step-by-step process along with the surrounding circumstances.
  • Name and other details of all the witnesses to the occurrence.
  1. Whether any traces were left behind by the accused.
  2. Any other material circumstances.

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Information does not constitute an FIR

It must be noted that not all information can be termed as a ‘criminal complaint’ or ‘FIR’. Only the information that is disclosed to the officer-in-charge of the concerned Police Station and reveals the commission of a cognizable offence can constitute an FIR. Also, only the earliest version of the case can constitute an FIR.

In case of multiple FIRs registered in a single case, the earliest report to the police officer will reach the officer-in-charge as the FIR.

Telephonic Information

If the telephonic information received by the concerned police officer discloses neither the name of the accused nor the offence committed, it will not amount to an FIR or Criminal Complaint. The same has been stated by the Supreme Court in Ravishwar Manjhi & Ors. v. State of Jharkhand[2].

In Soma Bhai v. State of Gujarat[3], a complaint was reported to the sub-inspector and before reducing the information to writing, the sub-inspector looked for instructions from the main police station at Surat via telephone message. It was observed that information written down by the sub-inspector was an FIR but the message received by the sub-inspector was too vague and cryptic to be called an FIR.

In T.T. Anthony v. State of Kerala[4], it was observed by the Supreme Court that apart from cryptic information received via telegram or telephone, the information recorded first in the station house diary by the officer-in-charge is the FIR.

In Thaman Kumar v. State of Union Territory of Chandigarh[5], it was held that telephonic message conveyed by the Constable on Night Patrol Duty does not constitute an FIR.

In Vikram & Ors. v. State of Maharashtra[6], PW2 informed the police officer on telephone and missed out on some of the details. The Supreme Court observed that a cryptic and anonymous message conveyed to a police officer via telephone, which does not disclose the commission of a cognizable offence, cannot be considered as an FIR. It was further observed that merely because the information was first in point of time, it cannot be called an FIR.

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In Animireddy Venkata Ramana and Ors. v. Public Prosecutor, High Court of Andhra Pradesh[7], it was held that information received by an officer-in-charge via telephone about the commission of a crime is not an FIR but merely a call to make the Police come to the crime scene merely. It is not expected of an officer-in-charge of a police station to go to the crime scene only after the registration of an FIR.

In Sidhartha Vashist @ Manu Sharma v. State of NCT of Delhi[8], it was again observed that a cryptic message received via telephone should not be treated as an FIR as the intent of such a communication is only to get the police to the crime scene. The intention can be culled out from a reading of Section 154 of the CrPC which provides that if the information is provided orally, should be reduced to writing.

Ways to file a Criminal Complaint

To set the criminal law into motion, the first step is to report the commission of a crime. There are two ways to report the commission of a crime, which are as follows:

  1. One may go to the nearest Police Station and provide all the information related to the commission of a crime to the concerned police officer. If the information disclosed reveals the commission of a cognizable offence, the concerned police officer will lodge an FIR (First Information Report) under Section 154 of the CrPC.
  2. If the information disclosed reveals the commission of a non-cognizable offence, the concerned police officer will lodge an NCR (Non-Cognizable Report) under Section 155 of the CrPC. The concerned police officer then forwards the NCR to the Magistrate and has no power to investigate such a case without the order of the Magistrate.
  3. Apart from this, in petty incidents like Lost and Found, Missing person, and similar incidents, one can go to the state police portal and file an e-FIR. The service of e-FIR has made it easy for the citizens to report their petty cases and not go to the police station every now and then. Surprisingly, there are no provisions that expressly regulate the procedure to be followed after the filing of an e-FIR. Hence, there is a dire need for some more provisions in the criminal law regime of India that can govern the procedure of registering e-FIR and the procedure to be followed afterward.

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Essentials of an FIR

The expression ‘FIR (First Information Report)’ is not used anywhere in the CrPC. However, Section 154 of the CrPC provides the essential conditions to be satisfied during disclosure of the commission of the alleged offence to the officer-in-charge of the police station, which are as follows:

  1. The offence alleged to have been committed must be a cognizable offence.
  2. The officer-in-charge of the police station must receive such information.
  3. The complainant must reduce all the information to writing and sign it. If the complainant provides the information to the officer-in-charge orally, then the officer-in-charge or his subordinate police officer may reduce it to writing.
  4. The information reduced in writing be read over to the complainant and provided to him for signing it.
  5. The information recorded should be entered into the Daily Diary, General Diary, Station Diary, or such other diary or register as prescribed by the appropriate Government.

After the filing of FIR, the officer-in-charge has to conduct a preliminary inquiry. In Lalita Kumari v. Govt. of Uttar Pradesh[9], the Supreme Court held that the purpose of preliminary inquiry is to determine whether the allegations in the criminal complaint make out a cognizable offence. It was further observed by the Supreme Court that action should be taken against the concerned police officer if no FIR is registered even after the disclosure of a cognizable offence.

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Remedies for non-registration of FIR

There is a dire need to expand the scope of e-FIR as the service is available only for petty crimes and also because the police officials often deny registering a criminal complaint. However, the expansion of the scope of the service of e-FIR is not in our hands. Therefore, if there is a refusal to register our police complaint, we may adopt any of the following remedies:

  1. One may reach out to police officers of higher ranks and let them know about the complaint.
  2. One may write a letter or application to the Superintendent of Police stating all the material facts and circumstances of the complaint under Section 154(3) of the CrPC. The Superintendent of Police may either investigate the case himself or order an investigation.
  3. One may file a private complaint to the Magistrate under Section 200 of the CrPC. The Magistrate is then, supposed to decide on the issue of cognizance.
  4. If the police do not co-operate in the investigation and one is not sure of the court procedures to be followed, one may take the aid of various bodies like SHRCs/NHRC, NCW, NCPCR, NCSC, etc.

What is Zero FIR?

Zero FIR is an FIR that can be filed at any police station regardless of the jurisdiction. A Zero FIR is ultimately transferred to another police station having jurisdiction to conclude the investigation. The purpose behind lodging a Zero FIR is to obtain evidence in cases involving sexual assault, murder, road rage, and so on. In such cases, it is pertinent to obtain evidence and conduct an investigation as the evidence is capable of being manipulated or corrupted.

Also, it doesn’t let the police officials avoid their duty to investigate an offence. Therefore, the officer-in-charge cannot refuse to register an FIR in such a case merely on the ground of lack of jurisdiction.

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Evidentiary Value of a Criminal Complaint

A complaint made to the police has no evidentiary value for the following reasons:

  1. It is not made during the trial.
  2. It is not given on oath.
  3. It is not tested by cross-examination.
  4. It is not a substantial piece of evidence and the only purpose of an FIR is to set the criminal law regime in motion.
  5. A statement made before a police officer is not admissible as evidence as stated in Sections 25 and 26 of the Indian Evidence Act, 1872.

Also, an unreasonable or undue delay in filing an FIR also gives rise to suspicion on the complainant.

However, FIR can be used to corroborate the statements made by the accused, victim, and witnesses during the trial and other types of evidence.

[1] (1945) 47 BOMLR 245

[2] AIR 2009 SC 1262

[3] AIR 1975 SC 1453

[4] AIR 2001 SC 2637

[5] AIR 2003 SC 3975

[6] AIR 2007 SC 1893

[7] AIR 2008 SC 1603

[8] AIR 2010 SC 2352

[9] (2014) 2 SCC 1