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Role of Consumer Protection Law in Medical Negligence cases

Post author By ashwin
Post date December 23, 2020

By: Sreyasi Sarma

Abstract

Medical profession is a noble profession. The connection between the patient and the specialist depends on shared trust and confidence. It is a helpful weapon of shopper to guarantee responsibility of specialist organizations. The patients have begun utilizing this Act, when they are abused by clinical carelessness of the medical services. Each specialist independent of the spot of his administration has an expert commitment to broaden his administration for ensuring life. Inadequacy might be consequence of powerlessness and absence of competency while carelessness would be brought about via lack of regard. In all instances of carelessness, there will be lack yet in all instances of inadequacy, carelessness won’t be available. The Indian legal executive has excellent help in securing and protecting the privileges of the customers just as sharpening the general public concerning the privileges of the customers. The analyst through some case laws endeavour to zero in upon the legal activism on clinical carelessness risk under the Consumer Protection Act.

Introduction:

Recently, Indian culture is encountering a developing mindfulness with respect to patient’s privileges. This pattern is unmistakably detectable from the ongoing spray in suit concerning clinical expert or foundation obligation, guaranteeing redressal for the enduring caused because of clinical carelessness, vitiated assent, and penetrate of privacy emerging out of the specialist persistent relationship. The patient-focused activity of rights assurance is needed to be acknowledged in the monetary setting of the fast decay of State spending and gigantic private interest in the circle of the medical services framework and the Indian Supreme Court’s meticulous endeavours to Constitutionalize a privilege to wellbeing as a principal right. Starting at now, the arbitrating cycle concerning clinical expert obligation, be it in a purchaser discussion or a normal common or criminal court, considers precedent-based law standards identifying with carelessness, vitiated assent, and penetrate of classification. In any case, it is similarly basic to take note of that the assurance of patient’s privilege will not be at the expense of expert honesty and self-rule. There is certainly a requirement for finding some kind of harmony. Something else, the outcomes would be illogical.

With regards to acquiring measures, there is a meriting need for a two dimensional methodology. On one hand, the attractive heading focuses towards recognizable proof of least sensible principles considering the social, conservative, and social setting that would encourage the adjudicators to choose issues of expert risk on a goal premise. Then again, such distinguishing proof empowers the clinical experts to disguise such norms in their everyday release of expert obligations, which would ideally forestall to an enormous degree the situation of assurance of patient’s privileges in a litigative atmosphere. Over the long haul, the present antagonistic arrangement of specialist and the patient would go through a change to the benefit of the patient, specialist, and society on the loose.

In the law of carelessness, experts, for example, attorneys, specialists, engineers and others are remembered for the classification of people purporting some extraordinary ability or gifted people by and large. Any errand which is needed to be performed with an extraordinary ability would commonly be conceded or attempted to be performed just if the individual has the essential expertise for playing out that task. Any sensible man going into a calling which requires a specific degree of figuring out how to be known as an expert of that branch, impliedly guarantees the individual managing him that the aptitude which he purports will be practised with a sensible level of care and alert. On a similar relationship, this guarantees the patients that a specialist has the imperative expertise in the clinical calling which he is rehearsing and keeping in mind that endeavour the presentation of the errand depended to him he would practice his ability with sensible skill. Decided by this norm, a proficient including clinical expert might be held obligated for carelessness on one of two discoveries: possibly he was not had of the essential expertise which he proclaimed to have had, or, he didn’t work out, with sensible ability in the given case, the aptitude which he had.

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The norm to be applied for judging, if the individual charged has been careless, would be that of a customary equipped individual practising common ability in that calling. It isn’t vital for each expert to have the most elevated level of aptitude in that branch which he rehearses. Where a calling grasps a scope of perspectives with respect to what is an adequate norm of direct, the ability of the expert is to be decided by the most minimal standard that would be viewed as worthy. The test is the norm of the customary gifted man practising and maintaining to have that extraordinary ability. A man need not have the most noteworthy master ability; it is entrenched law that it is adequate in the event that he practices the normal expertise of a common skilled man practicing that specific workmanship.

Hence, an expert man should order the corpus of information which structures part of the expert hardware of the common individual from his calling. He ought not linger behind other common steady and clever individuals from his calling in the information on new advances, disclosures and improvements in his field. He ought to have such mindfulness as a normally able professional would have of the insufficiencies in his insight and the impediments on his ability. He should be aware of the dangers and dangers in any expert assignment, he attempts to the degree that other conventionally skillful individuals from the calling would be ready. He should bring to any expert undertaking he attempts no less mastery, ability and care than other usually skilled individuals from his calling would bring yet require bring no more.

To build up risk on that premise it must be appeared

(1) that there is a typical and ordinary practice;

(2) that the respondent has not embraced it; and

(3) that the course indeed embraced is one no expert man of conventional aptitude would have taken had he been acting with normal consideration.

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A clinical specialist can’t be held at risk essentially on the grounds that things turned out badly from incident or misfortune or through a blunder of judgment in picking one sensible course of treatment in the inclination of another. A clinical expert would be obligated just where his lead fell beneath that of the norms of a sensibly equipped.

Legal INTERPRETATION OF MEDICAL NEGLIGENCE LIABILITY

Overall, the accompanying lawful issues have been tended to and reacted to by various discussions and Courts in India.

Charge of Medical Negligence against Professional Doctors

From the hour of Lord Denning up to this point it has been held in a few decisions that a charge of expert carelessness against the clinical expert remained on an alternate balance from a charge of carelessness against the driver of an engine vehicle. The weight of verification is correspondingly more prominent on the individual who charges carelessness against a specialist. With the best ability on the planet, things here and there turned out badly in clinical treatment or careful activity. A specialist was not to be held careless essentially on the grounds that something turned out badly. The National Commission, just as the Apex Court in a catena of choices, has held that the specialist isn’t subject for carelessness in view of another person of better aptitude or information would have endorsed an alternate treatment or worked in an alternate manner. He isn’t liable of carelessness on the off chance that he has acted as per the training acknowledged as legitimate by a sensible group of clinical experts. The Hon’ble Supreme Court on account of Dr Laxman Balkrishna versus Dr Trimbak, AIR 1969 SC 128, has held the above view that is as yet viewed as a milestone judgment for choosing an instance of carelessness. On account of Indian Medical Association versus Santha, the Apex Court has concluded that the expertise of a clinical professional varies from specialist to specialist and it is officeholder upon the Complainant to demonstrate that a specialist was careless in the line of treatment that brought about the life of the patient. Along these lines, a Judge can see a specialist as blameworthy just when it is demonstrated that he has missed the mark concerning the norm of sensible clinical consideration. The standard of Res-Ipsa-Loquitur has not been commonly trailed by the Consumer Courts in India including the National Commission or even by the Apex Court in choosing the case under this Act. In a catena of choices, it has been held that it is for the Complainant to demonstrate the carelessness or insufficiency in assistance by illustrating master proof or sentiment and this reality is to be demonstrated past all sensible questions. The simple charge of carelessness will be of no assistance to the Complainant.[1]

What Constitutes Medical Negligence?

Disappointment of an activity and results are not carelessness. The term carelessness is characterized as the nonattendance or absence of care that a sensible individual ought to have taken in the conditions of the case. In the claim of carelessness for a situation of wrist drop, the accompanying perceptions were made. Nothing has been referenced in the protest or in the grounds of allure about the sort of care wanted from the specialist wherein he fizzled. It isn’t said anyplace what kind of carelessness was finished over the span of the activity. Nerves might be chopped down at the hour of activity and simple cutting of a nerve doesn’t add up to carelessness. It isn’t said that it has been intentionally done. Actually, it is additionally not said that the nerves were cut in the activity and it was not cut at the hour of the mishap. No master proof at all has been created. Just the report of the Chief Medical Officer of Haridwar has been delivered wherein it said that the patient is an instance of post-horrible wrist drop. It isn’t said that it is because of any activity or the carelessness of the specialist. The simple claim won’t present out a defence of carelessness except if it is demonstrated by solid proof and is upheld by master proof. The facts demonstrate that the activity has been performed. It is likewise evident that the Complainant has numerous costs yet except if the carelessness of the specialist is demonstrated, she isn’t qualified for any compensation.[2]

What is the Standard of Care?

It is currently a settled standard of law that a clinical expert will bring to his assignment a sensible level of expertise and information and must exercise a sensible level of care. Neither the most noteworthy nor the least level of care and fitness decided in the light of conditions for each situation is the thing that the law requires. Decided from this measuring stick, post-employable contamination or shortening of the leg was not because of any carelessness or insufficiency in help with respect to the contrary party Appellant. Inadequacy in help subsequently can’t be attached on the inverse party.[3]

For a situation that prompted visual impedance as a result, the accompanying perceptions were made. The writing concerning largo unmistakably referenced that the symptom of this medication whenever taken for a more extended length can influence visual perception however this isn’t a reality for this situation. Plus, there is no master proof on record to show that the utilization of this medication made harm the patient’s visual perception. In any event, for the wellbeing of argument, on the off chance that it is acknowledged that this medication made harm the patient’s vision, if the Respondent-specialist is one who has encouraged his patient to utilize this medication after an assessment in which he discovered the patient to be experiencing jungle fever, all things considered too the specialist Respondent can’t be held liable of carelessness or insufficient in his administration. In any case, as expressed above, for this situation, the medication has been utilized by the patient in low portions for a couple of days and there is no master proof to show that the utilization of medication has influenced his vision. Thusly, the Complainant-Appellant has neglected to demonstrate that the Respondent was careless and insufficient in his obligation as a doctor.[4]

Verification of Medical Negligence

It has been held in various decisions by the National Commission and by the Hon’ble Supreme Court that a charge of expert carelessness against a specialist remained on an alternate balance from a charge of carelessness against a driver of a vehicle. The weight of evidence is correspondingly more noteworthy on the individual who affirms carelessness against a specialist. Even with a specialist with the best aptitudes, things now and then turn out badly during clinical treatment or in a medical procedure. A specialist isn’t to be held careless essentially in light of the fact that something turned out badly. The Complainant’s vision was not re-established after the activity was led by the Appellant yet on this ground alone a specialist cannot be held careless in light of the fact that even in the wake of receiving every vital insurance and care the aftereffect of the activity may not be agreeable since it relies upon different variables. The dispute of the Appellant was that the patient was experiencing diabetes and circulatory strain and in numerous such cases, visual perception isn’t re-established after the activity anyway cautiously it is finished. For this situation, there isn’t anything on record to show that something turned out badly because of a demonstration of the Appellant-specialist. There is no proof to arrive at the resolution that the Appellant fell beneath the norm of a sensibly equipped expert in their field, to such an extent that their leaders may be meriting reproach. The Appellant can’t be subject for carelessness since another person of better ability or information would have endorsed an alternate technique for activity in an alternate manner. The proof proposes that the Appellant has played out the activity and acted as per the training routinely acknowledged and received by him in this clinic and a few patients are consistently treated for their eye issues. The Hon’ble Supreme Court on account of Dr Laxman Balkrishna versus Dr Triambak, AIR 1969 Supreme Court page 128 has held the above view and this view has been additionally affirmed on account of the Indian Medical Association versus Santha. The Apex Court and the National Commission has held that the aptitude of a clinical expert contrasts from specialist to specialist and it is an occupant upon the Complainant to demonstrate that the Appellant was careless in the line of treatment that brought about the deficiency of visual perception. A Judge can see a specialist as blameworthy just when it is demonstrated that he has missed the mark regarding a norm of sensible clinical consideration. The reality and conditions of the case before us show that the Appellant has taken care of the patient with due consideration, expertise, and determination. Basically, in light of the fact that the patient’s vision was not re-established acceptably, this record alone isn’t just for holding the specialist blameworthy of carelessness and inadequate in his obligation. It is settled law that it is for the Complainant to demonstrate the carelessness or inadequacy in help by illustrating master proof or sentiment and this reality is to be demonstrated past all sensible uncertainty. A simple claim of carelessness will be of no assistance to the Complainant. [5]

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The accompanying instances of supposed clinical carelessness give an understanding into how a ultimate choice is reached by the legal bodies. “All clinical carelessness cases concern different inquiries of reality, when we state the weight of demonstrating carelessness lies on the Complainant, it implies he has the undertaking of persuading the court that his adaptation of the realities is the right one”. No master feeling has been delivered by the Complainant to repudiate the report of the Board of Doctors. The allure of the Complainant was excused with costs as “No master feeling has been created by him.”[8] For a situation of an inappropriate association of the patella, no master has been delivered by the Complainant to demonstrate the carelessness of the contrary party. Accordingly, it can’t be said with a precision that therapy of the Complainant by the contrary party was against the standards recommended under the clinical statute or that the contrary party in any capacity was careless or inadequate in the presentation of his duties. [6]

“Charge of clinical carelessness is a major issue and it is for the individual who sets up the case to demonstrate carelessness dependent on the material on a record or via proof”. The objection of clinical carelessness was excused in light of the fact that the candidate neglected to build up and demonstrate any case of clinical negligence.[7] “Just on the grounds that the activity didn’t succeed, the specialist can’t be supposed to be careless” and the allure of the specialist was allowed.[8] “A simple claim won’t present a defence of carelessness except if it is demonstrated by solid proof and is upheld by master proof” and the allure was dismissed. “The commission can’t establish itself into a specialist body and repudiate the assertion of the specialist except if there is something opposite on the record via a specialist assessment or there is any clinical composition on which dependence could be based” and the Revision appeal of the specialist was allowed. For another situation, an X-beam report showed a little mistiness that like a hazy shadow that gets obvious for some causes other than math. It couldn’t be accepted that actually, stone existed in the correct kidney that had not been worked upon. Considering the present situation, we don’t feel that any instance of carelessness has been made by the Complainant. This request is, subsequently, allowed.[9]

RECENT SUPREME COURT DECISION AND CONCLUSION

Before the instance of Jacob Mathew versus the State of Punjab, the Supreme Court of India conveyed two distinct assessments on specialists’ obligation. In Mohanan versus Prabha G Nair and another, it decided that a specialist’s carelessness could be found out simply by filtering the material and master proof that may be introduced during a preliminary. In Suresh Gupta’s case in August 2004 the norm of carelessness that must be demonstrated to fix a specialist’s or specialist’s criminal risk was set at “net carelessness” or “wildness.”

In Suresh Gupta’s case, the Supreme Court recognized a mistake of judgment and at fault carelessness. It held that criminal indictment of specialists without sufficient clinical sentiment highlighting their blame would do an extraordinary damage to the network. A specialist can’t be gone after for at fault or criminal carelessness in all instances of clinical setbacks or incidents.

A specialist might be at risk in a common case for carelessness however simple remissness or need of due consideration and aptitude can’t be portrayed as so wild or terribly careless as to make her/him criminally obligated. The courts held that this qualification was important so the perils of clinical experts being presented to common risk may not absurdly stretch out to criminal obligation and open them to the danger of detainment for supposed criminal carelessness. Consequently, the grievance against the specialist must show carelessness or imprudence of such an extent as to demonstrate a psychological express that can be portrayed as absolutely indifferent towards the patient. Such gross carelessness alone is culpable.

On September 9, 2004, Justices Arijit Pasayat and CK Thakker alluded the subject of clinical carelessness to a bigger Bench of the Supreme Court. They saw that words, for example, “net”, “wild”, “capability”, and “apathy” didn’t happen anyplace in the meaning of “carelessness” under Section 304A of the Indian Penal Code and subsequently they couldn’t concur with the judgment conveyed on account of Dr Suresh Gupta.

The issue was chosen in the Supreme Court on account of Jacob Mathew versus the State of Punjab. The court guided the focal government to outline rules to spare specialists from pointless provocation and unjustifiable weight in playing out their obligations. It decided that until the public authority outlined such rules, the accompanying rules would win:

A private grievance of carelessness or carelessness against a specialist may not be engaged without by all appearances proof as a sound assessment of another skilled specialist supporting the charge. What’s more, the exploring official should offer a free input, ideally of an administration specialist. At long last, a specialist might be captured just if the examining official accepts that she/he would not be accessible for indictment except if captured.

[1] Smt. Savitri Singh v. Dr. Ranbir PD. Singh and others. 2004;(1) CPJ 25 (Bihar)

[2] Smt. Vimlesh Dixit v. Dr. R.K. Singhal. 2004;(I) CPJ 123

[3] Dr. Kamta Prasad Singh v. Nagina Prasad. 2000;(III) CPJ 283 (WB)

[4] Ajay Kumar v. Dr. Devendra Nath. 2004;(II) CPJ 482.

[5] Dr. Akhil Kumar Jain v. Lallan Prasad. 2004;(II) CPJ 504.

[6] Amar Singh v. Frances Newton Hospital and Anr. 2001;(I) CPJ 8.

[7] Mam Chand v. Dr. GS Mangat of Mangat Hospital. 2004;(I) CPJ 79

[8] Dr. (Smt) Kumud Garg v. Raja Bhatia. 2004;(I) CPJ 369.

[9] Dr. Harkanwaljit Singh Saini v. Gurbax Singh and Anr. 2003;(I) CPJ 153

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Role Of Intellectual Property Law In The Sports Industry

Post author By ashwin
Post date December 10, 2020

By: Pallavi Tiwari

INTRODUCTION

Sports are said to form 1-5 percent of the GDP and thus are very important for economy and various related companies. As far as the recent trend is concerned Indian Premier League (IPL) is going on and this is the most appropriate example to understand the connection between sports, marketing and business. Here, every team has its brand value, their advertisements, their theme songs, logos, brand name, tag-lines, marketing strategy and players’ performance strategy and all of this forms a part of IPR. All these assets need to be protected as part of IPR from being taken away by third parties. IP in sports came up first as recommended by Kunstadt but only with respect to copyright and trademark as the players who invest labor to develop a new move should be given economic benefit for the same.[1]

Copyright subsists in the photos clicked in the IPL events and the theme song of the themes or the title track of IPL itself.[2] Design rights can be established in the bats used by players which are specially designed and aim to facilitate their game. Trademark relates to the logo of the teams or their merchandise used in the games. All this helps in the branding of the team and also create some value in the eyes of the viewers. Unless and until something is appealable it holds no value in the market, so for investment it is important that it has created some value in the market. These logos and other IP rights have to be protected so that no one else could copy them or use them in their business and gain advantage of the established image of the players or the team, according to trademark dilution under Section 29(4) of the Trademark Act. [3]

Any third party could come up with these marks or designs and thus cause great loss to the owners and can also tarnish their image by selling bad products in the name of the players or teams by creating confusion in the minds of the consumers, which happened in the famous PayPal or Paytm case. Thus sports and IP laws work in intersection with each other and IP is essential for the commercialization of sports.[4]

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PATENT LAW AND SPORTS INDUSTRY

Patent law can be used in the sports industry with respect to the techniques used in the game or in the making of sports equipment to enhance the efficacy. Some examples of such patents are “D.S. Miller’s Dominant Hand Putting Method” or the “Nolan Ryan’s baseball pitch” and both are either to evade the impediments caused due to some handicap or improve the technique involved in a game. Patent can only be granted if something is novel, non-obvious and has industrial use as per Article 27(1) of the TRIPS[5] and also imbibed into the Indian Patent Law. As far as sports patents are concerned and the first requirement of novelty is to be addressed, it is important to note that even if a player has developed a technique or a move to play or designed an equipment to enhance the game it is important that he gets a patent first on it and then use it in front of other players. If he fails to do so, the patent is said to be already in the public and thus not novel or non-obvious. To determine novelty it is important that the technique or anything to be patented should not be in the mind of the public already expert in the field but the moves or techniques used by the players are just movements of limbs and thus very commonly discussed and seen amongst the players. Thus generally players fail to get patent due to non-fulfillment of the novelty criteria. Another condition is of industrial application and there is no proof that sport related patent can be used commercially or in an industry. It depends on patent to patent and thus this condition may or may not be fulfilled.[6]

Sports is about learning new moves and mostly players learn from one another but if these moves are patented it would cause an unfair advantage on the other competitors. Sometimes another player in between of a match can use a patented move which would cause the game to come to a halt and thus destroy the basic essence of sports. Thus, this would make the players first think and then make a move or use a technique which would not be spontaneous anymore and going against the principles of sports.[7]

As far as India’s position with respect to patenting moves of a game are concerned section 3(m)[8] of the Indian Patent Act clearly debars “a mere scheme or rule or method of performing mental act or method of playing a game” from being granted a patent. Thus India is still not open to patenting of sports or the moves involved as compared to US which observes as laid down in Diamond v. Chakraborty[9] case that anything can be patented.[10]

Thus, the position of patent grant with respect to sports move is still not clear and uniform across the globe so no decision can be called upon the same.

COPYRIGHT AND SPORTS INDUSTRY

As far as sports are concerned copyright exists in a lot of things like slogans for a team, pictures of players, or any other photography associated with the events. As copyright now involves broadcaster and performers’ rights under the Act, it gives a broadcaster a right to telecast a particular sporting event and to possess that right the companies pay huge amounts. So if any other person uses the broadcast for his own channel then it shall also be an infringement of copyright. These broadcasters make available to the public the sport events as each and every event cannot be attended by the viewers. Thus broadcasting is the major area where copyright subsists in case of sports and due to the revenue generated by licensing the broadcasting rights events can be organized and other related events can take place. Apart from the field events there are computer games also which use software which can be subjected to copyright protection and also patent protection when combined with hardware as computer programs or software are per se not patentable.[11] The characters or graphics used in video games are also subjected to copyright protection as now the craze for online games and events including video games are no less than field sports events.[12]

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As far as copyright in sports is concerned, there are two categories of sports that can be discussed: purposive or non-aesthetic sports or aesthetic sports.[13] Section 13 mentions about works in which copyright subsists and sports is clearly not a part of it. The case of Institute for Inner Studies v.Charlotte Anderson,[14] was one landmark case which discussed why copyright protection is not offered to sports. The High Court observed that yoga asana cannot be granted copyright protection because they are neither included under literary or dramatic work under the Act. The Court also felt that sports lack the main criteria of fixation in tangible medium with respect to copyright. It is also considered anti-competitive in nature as it will thereby reduce the scope for future players to use similar moves.

This is not the case with aesthetic sports (dance, gymnastics, skating) as they involve some creativity and can come under choreographic works protected under copyright. Dancers, gymnasts can also avail the performers’ rights under Section 38 of the Act. They also fulfill the requirements of performance under 2(q) of the Act and performer under Section 2(qq) of the Act and thus are eligible for protection. As far as uncertainty or originality is concerned with respect to copyright protection, aesthetic sports fulfill this criterion. They are also fixated in nature as most of the copyrighted works are as they constitute of certain specific moves.

Further in the case of Star India Pvt. Ltd. v. Piyush Agarwal & Ors.[15] the Single Bench observed that cricket events are subject to performers’ rights protection under the copyright act. But later on, this decision was overruled and the Delhi High Court observed that performers’ rights are not under copyright as they are clearly mentioned to be “special rights” under Section 38 of the Act. But stand in India relating to copyright protection for sports is still unclear.

TRADEMARK AND PROTECTION OF LOGOS AND BRAND NAMES IN SPORTS

Trademarks are used to distinguish goods and services from one another. These days’ sports events also involve a lot of brands and use them in logos and their marks to gain commercially. This is done essentially to create a brand value for products used in these sports or to catch the viewer attention. For example, champions rise is used for FIFA and like in IPL as well every team has their own logo and mark. It helps the viewers to establish a relation with the team or game and to choose their favorite side. There have been cases where players have trademarked their name like David Beckham. In the recent trend of online games it is important to have brand names for teams and events so the viewers can distinguish between them. If some revenue has to be generated through a sports event or by a team it is important that it should have some recognition in the market and this can be established through trademark.[16]

In a famous case STJUE Arsenal v. Reed,[17] the defendant used the branded goods outside the stadium in a commercial manner unofficially thus causing an infringement. Getting trademark on a team or a player’s name which in turn become very popular helps the sports apparel manufacture to establish goodwill on the brand value of the team or the player. According to Forbes ranking it is established that “the portion of [a sports team’s] enterprise value attributable to local revenue streams like television, advertising, merchandise and tickets, that exceeds what a typical team in the same sports generates.”[18]

There are some associated rights to trademarks which are known as personality rights where a player can control how much his personality in the public can be exploited to create a brand value or use it as recognition for a product. When someone uses a player’s name on their goods and does not do well on the goodwill of the player it is a clear case of trademark dilution under Section 29(4) of the Indian Trademark Act. This brand value created by using team names or players’ names can also be used by broadcasters to attract the audience and thus IP law is all mixed up in the sports industry.

TRADE SECRET IN SPORTS AND GAMES

Apart from these above-mentioned IP rights, there is one right which though not yet recognized under IP is important for the sports industry. It is trade secret which forms part of all the secret strategies of teams to win or secret compounds in their gears to make playing easy and winnable or any other dietary ingredient. It is not be disclosed to the public unlike patent rights. Generally other teams might try to steal these assets but they are to be necessarily protected so that no other team or player can gain undue advantage on the same.

Data analysis is another trade secret which needs to be protected from being used by fellow competitors. It may involve screening the way other team plays, their loopholes and the team’s strength and weakness in the past few matches. This then later on helps the team to decide how they will strategize their game and also observe patterns in the player’s physiological and psychological behavior. This data is also known as big-data and though India doesn’t recognize a specific trade secret law it still has been given special importance in US and UK with newly introduced legislations.

DESIGN RIGHTS IN SPORT INDUSTRY

Design rights are generally an extension of trademark law and copyright law where the difference is only that design first of all is only to refer to aesthetic beauty of the product and cannot include anything technical or anything attributing to the functions of the products. Teams or sports events use beautiful designs for products to be used in the game like bats, balls and other goods to attract the viewer attention. It is highly creative in nature and it aims to enhance the appearance of the goods to be used so that if someone buys the product later they can associate it with the design of the team or the player.

One such example is development of clever bicycle by Lucio Tortola, a cyclist to reduce issues in the back and any chance of injury in bicycle rides. This was designed to be a shock absorber and help the cyclists in future. Now this design has become very famous and used by most of the cyclists across the globe. So design is just not for beauty but to also remove some issues involved in the game and help the future players. [19]

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CONCLUSION

The author has discussed various IP rights associated with sports and players and how India stands with respect to these rights. There is also another term called ambush marketing apart from these IP rights infringements which is a problem in the sports industry. Generally it is not within the scope of IP law but needs to be addressed whenever any sports issue is under consideration. It is a very prevalent practice these days when some company tries to commercially get advantage on the basis of already established goodwill of an event. They reap commercial gains in this process by unofficially associating themselves with famous sports events and gaining advantage of being a sponsor when they are not.

Relying on afore-mentioned propositions, it is important to recognize the importance of various IP rights in sports and how they can be protected. IP is always an essential ingredient of any commercial activity and since sports is now more of commercial nature it is important to protect it. In this write-up, the author shall discuss how patent, copyright, trademark, designs, trade secret and other IP rights are closely attached to sports and how can they be infringed so that businesses and companies related to sports can avoid such activities. To save a business it is important to save the IP related to it and similar is the stand for sport industry.

[1] F. F. Scott Kieff, Robert G. Kramer & Robert M. Kunstad, “It’s Your Turn, But It’s My Move: Intellectual Property Protection for Sports Moves”, 25 Santa Clara High Tech. L.J. 765 (2012).

[2] Anita Roy, “Shield of IPR around IPL”, http://www.legalserviceindia.com/legal/author-616-anita-roy.html.

[3] Vaishali Singh, “The Untapped Emergence of IP Rights and Sports: Faster, Stronger and Higher” (2019) PL (IPR) July 91.

[4] Zia Akhtar, “Sports development, legal infrastructure and protecting Intellectual Property rights” http://www.africansportslawjournal.com/Sports%20development%20legal%20infrastructure%20and%20protecting%20Intellectual%20Property%20rights_.pdf.

[5] Article 27TRIPS 1994, “Patentable Subject Matter”.

[6] “Leveraging Intellectual Property In The Global Sports Economy: Sports As A Tool For Progress And Development”, Global Innovation Policy Centre, https://www.theglobalipcenter.com/introducing-leveraging-intellectual-property-in-the-global-sports-economy/.

[7] Derek Bambauer, “ Legal Responses To The Challenges Of Sports Patents”, Harvard Journal of Law & Technology Volume 18, Number 2 (2005).

[8] Section 3(m), The Patent Act, 1970 “a mere scheme or rule or method of performing mental act or method of playing game”.

[9] 447 U.S. 303 (1980).

[10] Sharada Kalamadi, “Intellectual property and the business of sports management”, (2012), http://nopr.niscair.res.in/bitstream/123456789/14768/1/JIPR%2017(5)%20437-442.pdf.

[11] S.K. Verma, “IP Protection of Software and Software Contracts In India”, Vol. 17 JIPR (2012).

[12] Molly Torsen, “Intellectual Property and Sporting Events: Effective

Protection of Event Symbols through Law and Practice”, International Intellectual Property Institute, https://iipi.org/wp-content/uploads/2010/07/Sporting_Events_and_Intellectual_Property.pdf.

[13] Seemantani Sharma, “A Copyright Incentive for Promoting ‘Aesthetic Sports’ in India”, The Entertainment and Sports Law Journal, 17(1), 7, http://doi.org/10.16997/eslj.232.

[14] Case Number: CS(OS)–2252/2011.

[15] MIPR 2013 (1) 201; 2013 (54) PTC 222 (Del).

[16] Paras Sharma, “Intellectual Property Rights In Sports” Volume 8, Issue 3, IJCRT, (2020).

[17] [2003] EWCA Civ 696 (21 May 2003).

[18] M Ozanian “The Forbes Fab 40: The World’s Most Valuable Sports Brands 2017”, Forbes, Forbes Fab 40: Teams (2017).

^[19]^“Reiventing the Frame, Challenging the Status Quo” https://www.wipo.int/ipadvantage/en/articles/article_0159.html.

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Analysis of Transportation Laws in India, UAE & USA

Post author By ashwin
Post date December 10, 2020

By: Subham Agarwal

Humankind has always found ways to transport themselves for business, survival, or food. Transportation has always played a significant role socially, economically, culturally, and commercially. Humankind has also always invented new ways to increase the speed of transportation.

The first-ever steam-powered automobile was built in 1769, and the steam-powered railway was built in 1804. In 1885 the first petrol-powered automobile was developed by Karl Benz, and this year is known as the “Birth year of modern car.” This changed the entire landscape of the transporting system, but change comes at a cost. This started causing various traffic deaths and injuries that resulted in many to express concern. In early 1903, New York City introduced the world’s first traffic law regulating speed limit in the city and countryside. With this, many countries started implementing rules to minimize traffic violations. In later years, the government started imposing stricter rules and regulations to reduce traffic violations, deaths, and injuries.

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United Arab Emirates (UAE)

The United Arab Emirates is a country predominated by Muslims. However, in the last few decades, people worldwide have settled there. UAE is famous for various things, one of them being strict laws. UAE has stringent rules for Motor Vehicle. In UAE, transportation law is of recent origin. The first law was “Federal Law No. (21) of 1995 Concerning Traffic”. The transportation system is also of recent origin. The first Bus service in UAE was introduced in Abu Dhabi by the Emirate in 2008 in only four routes.

In addition to it, the first passenger rail was started in 2009, i.e., Dubai Metro, while the Abu Dhabi metro and Sharjah metro are still under construction. Also, the construction work for the goods carrier train network commenced in 2009. The fact that transportation is of very recent origin in UAE, so the transportation law relating to Railways and others still need to be developed.

However, when it comes to Air Transport, Dubai airport is the world’s busiest airport for the last six years. All the airport in UAE is controlled by the General Civil Aviation Authority (GCAA), and they make all the necessary guidelines for the airport and air carriers.

UAE has one of the most strict laws relating to road transport. As we all know, UAE’s laws are mostly based on the Deterrent theory, but it helps UAE reduce its traffic death and injury. In 2006, 190 people died per million in traffic collisions linked to high speed and low safety culture. In 2010 it reduced to 100 per million, and in 2014-2018 it dropped by 34%.

Road and Transport Authority (RTA) regulates and issues licenses in UAE. It also operates jointly with the traffic department to ensure more efficiency in implementing rules. The road transportation in the UAE comprises driving rules, road rules, road types, land, and marine transportation. In Dubai, penalty points system are followed for each violation, and the authority adds black points for every violation. It leads to the seizure of the driving license if it reaches 24 black points within 24 months, the penalty charges are as follows:

On the first violation, the driving license is seized for three months
On the second violation, the driving license is seized for six months
On the third violation, the driving license is seized for a year and is given when the driver passes the driving course signed by the traffic authorities.

Various rules under Transportation Law of UAE are:

The minimum legal age for driving is eighteen, and the person has to renew every year up to the age of 21 and then in every ten years.
Wearing of seat belts for all the passengers is compulsory. A child seat is mandatory for up to 4 years of age, and no child below the age of ten can sit in the front seat. Violation of any of it is punishable with a fine of AED 400 and 4 black points.
Drinking and driving is considered as one of the most severe crimes, and if caught, imprisonment and/or fine of minimum AED 20,000 (4lakhs INR approx.). An additional charge under Narcotics law is filed.
Using a mobile phone while driving is strictly prohibited, and if caught, a fine of minimum AED 800 and 4 black points is charged.
Driver must also follow the “3-second rule,” i.e., there must be a 3-second distance between two cars, and tailgating is considered an offense.

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These are some traffic rules of the UAE, and the list goes on. Therefore, after looking at these few rules, we can conclude that UAE traffic rules are stringent but needful to avoid accidents and traffic violations. The deterrent model is beneficial, and various country’s legislators should give thought to it.

United States of America (USA)

In the United States of America, transportation consists of road, rail, air, and waterways transport. Travel through roads consist of 40% share, followed by airways and others. In the USA, the highest contributor to Greenhouse gas emission is transportation. Now, looking at the history of transportation, in the 18th century, most of the travels were done by rail, horses, or horse wagons. In this century, most of the population was situated in coastal areas, so traveling from one city to another was very difficult. Then in the 19th century, the automobile revolution took place. People started using motor vehicles, and due to the invention of better air travel, there was a significant shift from rail transport to air transport. In the 20th century, the national highway system came, and the road became the most preferred mode of transportation. Rail transport declined drastically.

In the present situation, all the states have their own traffic rules and guidelines regulated, supervised, and funded by the U.S. Department of Transportation. Although there are different rules for all the states, they are unified by the Uniform Vehicle Code (UVC). It is a model act by the National Committee on Uniform Traffic Law and Ordinances, a private non-profit group. Most of the members of these groups are state governments.

Compared to the various countries, the USA prefers motorized transit than any other form of transportation. 91% of the population owns 4 wheel vehicle, and 86% of workers have private vehicles for commuting to work.

In addition to it, individuals can also have their own private airport in the USA, and all the airlines are private. The airport safety, pilot training, and investigations are done by the Federal Aviation Administration and Transportation Safety Board. The USA has the world’s most developed air transportation system. There is a minimal passenger train or rail network present in the USA, but rail is heavily used to carry goods.

In many U.S. states, traffic offenses are distinguished into two, i.e., traffic misdemeanors and traffic felonies. Traffic misdemeanors are those minor offenses that do not require any hefty long trial. Punishment for these are fines or going to driving school. Traffic felonies are those offenses that endanger the lives of others while driving. For instance, driving a vehicle to hit and kill someone. Punishment for those offenses, which are a year or more imprisonment, comes under the category of traffic felonies.

In most states, the Points System is followed. This is similar to the UAE Black points system. For each offense, points are added in the U.S., and one can reduce it by paying fines or attending driving school. Too many points lead to temporary seizure of license.

Every state has a Department of Motor Vehicle or Bureau of Motor Vehicles, which keep records of the license holders, including tickets issued against such license holders. After being ticketed, a person can inform the local court about the alleged violation, either plea guilty, not guilty, or nolo contender (not to contest) for a specific time period (usually 10-15 days are given). On pleading guilty, the violator can ask the judge to reduce the fine. On pleasing not guilty, a hearing is done before a magistrate or judge, and if acquitted, then all the ticket will be waived off.

Therefore, we can conclude that every state has different rules and regulations in the USA, making it difficult for people who are traveling to various states. We can also see that ticketing and getting justice for that is a very lengthy process and is a significant burden on people. On the positive side, this clumsy process somewhere creates a deterrent in people’s minds before violating any rule.

India

In India, transportation consists of air, land, water, and rail. Air transport comes under the Ministry of Aviation, and the regulatory authority is the Directorate General of Civil Aviation (DGCA). Land transportation comes under the Ministry of Road Transport and Highway. Waterways come under the Ministry of Shipping, and the regulatory authority is the Inland Waterways Authority of India (IWAI). Lastly, railways come under the Ministry of Railways.

India’s first legislative law on transportation was the “Indian Motor Vehicle Act, 1914” central legislation passed by British India. The act had 18 Sections and gave local government the responsibility of registration and providing licenses to vehicle and drivers, and some regulations.

In India, the maximum number of people are dependent on public transportation. For example, Indian Railways came to India in 1853, running from Bombay to Thane, which is now the world’s 4th largest rail network with the most extensive workforce globally, i.e., 14 lakhs employees.

The potential of air transport in India was first realized in 1911 when an aircraft carried mail from Allahabad to Naini across river Ganga. The first civil aviation company in India was set up by TATA sons in 1932. Then, the Air Corporation Act, 1953, came into force to nationalize the entire industry. Today, the Indian aviation industry is one of the fastest-growing industries, with less nationalize control and more safety regulations work by the government.

In the present day, we are under the provision of the Motor Vehicle (Amendment) Act, 2019. This act amended the 1989 act and imposed more hefty fines on traffic violators. Some of the provisions are:-

Driving a vehicle without insurance is punishable with imprisonment up to three months or a fine of Rs 2000 or both for the first offense. Earlier it was Rs 1000.
Using a vehicle without registration is punishable with a fine of Rs 2000 to Rs 5000 in case of the first offense and for second and subsequent offense imprisonment up to 1 year or fine of Rs 10,000 or both.
In 2016, Good Samaritan Law was passed as Bill on the Supreme Court of India’s judgment. Ministry of Road Transport and Highway later issued guidelines. This law protects citizens who help accident victims from any delay or harassment.

Therefore, we can conclude that the 2019 amendment is going in tune with the UAE deterrent model by imposing hefty fines on violators and also creating awareness among people.

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Role of Intellectual Property in Mergers and Acquisition

Post author By ashwin
Post date December 9, 2020

By: Nidhi Poddar

Introduction

Intellectual Property has not always horse around Merger and Acquisition deals. Intellectual Property plays a disguised role in 2 major aspects:

By making certain Intellectual Property intensive industries, for example, life sciences, where the value of pharmaceuticals can often be viewed with the scope of patent protection.
By making certain deal structures, for example, spin-outs and joint ventures where the rational allocation of Intellectual Property Rights is an unavoidable necessity.

Whether directly or indirectly, consciously or unconsciously, Intellectual Property plays a significant role in any Merger and Acquisition activity. However, it was not unusual that the acquirer decides and proceeds with the typical Acquisition, without involving Intellectual Property experts. In most Merger and Acquisition deals, the acquirer determines the valuation, negotiates principal deal terms, and even finalized the structure of transactions whether internal or external. In certain aspects, Intellectual Property is a rattler to the Merger and Acquisition train i.e. delighted to affix along but not driving with equal importance. This is evidently accurate for valuation in Merger and Acquisition deals. While valuing a business, the bankers or any other person involved will not endeavor to value Intellectual Property separately. As the valuation of Intellectual Property separately is a burdensome task. If in any case, the acquirer measures the value of Intellectual Property separately from the business, then it would not be in the acquirer’s interest as the acquirer has to pay the higher value of the business.[1]

Merger & Acquisition

Waves of Merger and Acquisition is a key feature of corporate history and has evolved significantly in India in past decades. Merger and Acquisition has become the most important aspect of growth strategy in the corporate industry. Merger and Acquisition has shown an effective result in businesses like information technology, telecommunication, business process outsourcing and pharmaceuticals. The strategy of Merger and Acquisition has proven to be a surest way to acquire competencies and funds, opening new market avenues, expanding customer base, snuffing out competition. The strategy helped the corporate industry in maintaining and improving profitability.[2] Merger and Acquisition is a tool for reconstruction of the company in order to maximize the wealth of the company and create goodwill in the global market. Merger refers to consolidation of two companies into one company. This Merger of two companies will help in maximizing profit and enhance the work and ensure that the company achieves the desired goals. Whereas Acquisition refers to a takeover of one company by another company by purchasing its ownership stake. Generally, such a stake is above 50%, which provides the acquiring company the control of management.[3]

Intellectual Property

Intellectual Property is an incorporeal Property which is invented or created by human intellect. Intellectual Properties are intangible in nature and possess a right i.e. ” Right in Rem” which means that the inventor has the right towards the property wholly. The different forms of Intellectual Property are- Copyright, Trademark, Patent, Design etc. Intellectual Property Rights refers to the legal rights possessed by the inventor or creator in order to protect the invention or the creation for a certain period of time. Intellectual Property Rights is an exclusive right to the inventor or the creator or assignee, to use, sell or dispose the invention. Intellectual Property Rights promote the economic development of the country by creating healthy competition and encouraging industrial development and economic growth within the country.[4]

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Intellectual Property is referred to as a corporation’s biggest asset. In the New Economy- Brand names i.e. (Trademarks, Service marks and Trade names), Product value, Brand value, Innovation portfolio of the company plays a pivotal role in the management of assets of the company and are equally important as the goods and services. Sounds, smells, colour and product shape comes under the trademark protection. There should be no surprise that Intellectual Property plays a crucial role in the sale or purchase of a business.[5] Intellectual Property plays a vital role in the strategic development of the corporation. Intellectual Property is one of the various reasons for which different corporations merge or acquire any company, because such Merger and Acquisition strengthens their market share and improves and makes their management system efficient.[6] With the technology advancement, the importance and the value of intellectual property of a company has enhanced. The intellectual property possessed by a company is a cornerstone, thus has increased focus on intellectual property while any commercial transaction. In the present era, it has become the most task to identify and adequately analyze the value of intellectual property of the company as it will directly impact the value of the transaction.[7]

IP due diligence

This article intends to highlight and provide a quick overview on how Intellectual Property due diligence is important in Merger and Acquisition transactions. There is great significance of Intellectual Property due diligence in Merger and Acquisition transactions in relation to the acquisition or investment in technology and biotech companies because the main purpose of acquiring such company is to target the Intellectual Property Assets (IPA) of the company. Intellectual Property Assets mainly refers to Patents, Trademarks, Copyright. Intellectual Property due diligence refers to a deep investigation which is conducted to understand the value of the Intellectual Property of the target company before any Merger or Acquisition.[8]

Role of Intellectual Property in Merger and Acquisition:-

Value addition to the company portfolio:–

Merger and Acquisition of a company helps in adding value to the portfolio of a company. It is very necessary that companies evaluate the portfolio of the company and check whether the current portfolio meets the requirement of the company objective. In the present dynamic and inconstant market environment, it is not possible to invent something new, thus the companies must search for new opportunities and the ways of acquiring existing innovations of the other companies.

Acquiring unique capabilities:-

Every company wishes to have a stronghold and be in a dominating position against their competitors. One of the major tools to achieve this is Merger and Acquisition. By Merger and Acquisition, a company may acquire the unique innovation or capabilities of their competitors. This will help the companies to have an edge over others. This result in changing the whole outlook of the company and creating a unique and efficient business model.

Transfer of Technology: –

A fruitful benefit of acquiring an Intellectual Property is that it allows the transfer of technology from one company to another. This helps in proper exploitation and utilization of the Intellectual Property to its full extent.

Diversification: –

The Acquisition or Merger of a company helps in exploring and enhancing different sectors of a business. Merger and Acquisition open new doors of deals and growth within the market. It is very convenient to start a business through pre-existing or pre-established resources, and even this reduces the cost of operation and helps in creating a diversified asset portfolio for the company.

Growth: –

The main objective to implement the corporate strategy is to promote growth and development and to maximize the profit, resulting in achieving the desired goals. The company must ensure that the product portfolio of the company is updated and is efficient to meet the current demand in the market.[9]

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Some classic example of Merger and Acquisition

In 1988, Nestle acquired Rowntree business. It was the largest foreign takeover of a United Kingdom Company. In this deal, Nestle agreed to pay around US $ 4.5 Billion for Rowntree PLC. The main objective of this deal was to acquire famous brands i.e. Kit Kat, Yorkie, and Rolo.
Another Classic example is Acquisition of Luxury Italian fashion house Versace by Michael Kors. The main objective of this deal is to access new product lines and markets through an established brand and IP portfolio.[10]
Motorola Mobility was acquired by Google Inc. which gave the acquirer complete control of Motorola’s patents. Later Google Inc. sold Motorola Mobility to Lenovo, but retained ownership of Motorola Mobility’s Patent Portfolio. The main objective of Google Inc. was to purchase the patents of Motorola mobility.[11]
Another interesting case study is the Acquisition of Rolls Royce by Volkswagen. Volkswagen has acquired all the assets required for the production of cars but was restricted to use the Logo of Rolls Royce. Volkswagen overlooked the fact that prior to the Acquisition, BMW has already acquired the access to use Rolls Royce Logo for its car.[12] BMW was a direct competitor to Volkswagen. Volkswagen purchased all rights to manufacture Rolls Royce cars but did not have engines for their car as BMW was producing engines for Rolls Royce. Rolls Royce factory was manufacturing both Rolls Royce and Bentley cars. After a lot of twists and turns, in 2003 BMW became the owner of Rolls Royce and Volkswagen is sole manufacturer of Bentley cars. This case study reiterates the importance of intellectual property due diligence before any Merger and Acquisition.

By the above stated classic examples what we get to learn from it.

In any Merger and Acquisition proper due diligence of Intellectual Property asset is a must. The nature of Merger and Acquisition is stated as risky and with the technology advancement in the present era has become riskier. Due diligence of Intellectual Property Assets must be the pertinent question before initiating a formal contact with the target company. Before contacting, the company must do some homework and must collect certain information regarding patents, trademark, copyright, goodwill etc. Needless the same amount of importance must be given to the tangible and intangible assets to get a fair valuation.[13]

Conclusion

Intellectual Property are the intangible assets of the company and plays a vital role in the expansion of the company and even add a great value to the portfolio of the company. Merger and Acquisition help in creating asset portfolio, acquire new capabilities, enhance the growth rate which ultimately help the company achieve their goals. To avoid any uncertainties or defects, a company should ensure a proper due diligence and valuation of Intellectual Property asset before acquisition of the Intellectual Property asset.

A company survival, goodwill and the profit depend on the possession of IP assets. It must be ensured that the deal benefits both the parties. Government is bringing out various policies to encourage Merger & Acquisition in India. The Land Acquisition bill, Labor Law and Good & Sale Tax (GST) will have a great impact on the corporate field.

Any company at any level or a startup company must emphasize on the importance of protecting their Intellectual Property rights. The acquiring company must conduct due diligence to improve their marketability and be able to identify weaknesses.

Due diligence is an integral part of any Merger and Acquisition transaction. Any act of negligence while performing due diligence can lead to over valuation of the company and even lead to an exposure to a unknown risk and liabilities.

[1] https://www.sullcrom.com/siteFiles/Publications/Mousavi-IAM-July-Aug-2011.pdf

[2] https://pdfslide.net/documents/Intellectual-Property-the-dominant-force.html

[3] http://www.legalserviceindia.com/legal/article-2693-role-of-Intellectual-Property-in-an-acquisition-or-Merger.html#:~:text=Intellectual%20Property%20assets%20are%20the,such%20as%20Merger%20and%20acquisition.

[4] https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3217699/

[5] https://norrismclaughlin.com/articles/Intellectual-Property-aspects-of-Mergers-a-Acquisitions-part-i-of-ii-conducting-due-diligence/

[6] https://www.udl.co.uk/insights/the-importance-of-ip-in-Mergers-and-Acquisitions

[7] http://www.buildingipvalue.com/05_NA/124_127.htm

[8] https://www.corporatelivewire.com/top-story.html?id=ip-due-diligence-in-ma-transactions

[9] Supra note (3)

[10] https://www.udl.co.uk/insights/the-importance-of-ip-in-mergers-and-acquisitions

[11] https://www.businesswire.com/news/home/20150407005604/en/Research-Markets-Strategic-Importance-Intellectual-Property-IP

[12] https://medium.com/@ramkumar1984.rajachidambaram/how-ip-acquisition-unlocks-huge-value-in-technology-m-a-23e2739cf091

[13] https://www.origiin.com/2019/01/10/mergers-and-acquisitions-intellectual-property-due-diligence/

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Analysis Of Trademark Laws In USA, UAE, And Germany

Post author By ashwin
Post date December 1, 2020

By: Jeetu Kanwar

INTRODUCTION

World Intellectual Property Organization (WIPO) is the body which has setup certain rules and regulations for governance of Intellectual Property (IP) services throughout the world. It mainly includes 193 countries which are part of United Nations. [1]

Trademarks are part of such intellectual property. It simply helps to differentiate between the goods of the manufacturers. It helps to distinguish goods with similar or identical owners. Also through trademark one is able to protect his intellectual property. It confers legal rights upon the owner of the trademark.

Here comes the role of trademark laws. It helps to protect owner of the trademark. An owner can bring a legal action against the other person who causes trademark infringement. Such personal is liable for punishment. The owner of trademark can take legal action which is both civil as well as criminal action. Thus the person is liable to be punished with fine or imprisonment or both.

Different countries have their own regimes of trademark laws. They are governed by various laws and have different set of rules and regulations to counter trademark infringement. This makes the rules to differ from country to country and region to region. Thus there are several blend of regulations making trademark laws unique in nature.

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In this write-up trademarks laws of following countries are explained and a parallel analysis is drawn for a better understanding:

TRADEMARK LAWS IN USA

In its basic essence trademark law in the USA is made to protect and distinguish goods made by one person from that of another manufacturer. This helps to protect and differentiate similar kinds of goods and to give due credit to the producer. In the USA most of the service marks originate from their use and thus are totally identical from their mere use in different setups. In order to protect the mark, it is always suggested to either register the trademark with the federal government and if that is not possible then the mark should mandatorily be registered with the state government to avoid any kind of misuse or infringement.[2]

A trademark in the USA is infringed when another person uses the same mark in a manner such that it likely causes confusion among the common masses. Several people can use mark but only when it doesn’t cause any confusion among common people. [3]

Next thing to consider here is about the procedure to register the trademark in the USA[4]

All the application with regard to the registration of trademark needs to be moved to the United States patent and trademark office. After this application, the trademarks are checked for their resistibility. If a mark is found eligible for registration and fulfills all the criteria then it is published in the official gazette. In the case of use based applications, they published and if are not opposed then registration is issued providing detail of the expiration period.

In the case of intent use based application, a notice of allowance is issued which is valid up to a period of three years from the issue of the notice of allowance. After which registration is issued.

An application for registration must include the following:

It should include the name and address of the owner who wishes to register.
It should include the applicant’s citizenship or residence or place of organization.
It should include details of the goods on which the mark needs to be used.
It should include the details where the mark was first used.
It should include a declaration that needs to be signed and the application needs to reveal the specimen and drawing of the mark.
It should include the meaning of the words which are not in English.
It should also include a claim declaring a prior use of the mark which the applicant is trying to register in order to ascertain whether anyone else is using the same.
It should also include a fee for the goods which come under the category of international goods.

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After due verification and completion of the application for registration of a trademark, the United States Trademark and patent office mails the certification of the registration to the owner of the trademark.

TRADEMARK LAWS IN UAE

Government of UAE has taken strict measures and provisions for the protection of their intellectual property especially trademark. There are stringent provisions for the regulation of trademark laws in UAE. Trademarks in UAE are protected by Federal Trademark Laws, which ensures proper supervision of trademarks and their misuse.[5]

REGISTRATION AND INFRINGEMENT OF TRADEMARK IN UAE

A trademark is widely used to distinguish between goods of one trader from that of another.[6] Registration of trademark in UAE is done by forwarding an application to the trademark section of the ministry of economy and commerce. After due completion of application and procedure for registration, the trademark is registered with the ministry. If in case any other person or organization or other entity uses the same registered trademark then it will amount to trademark infringement.

In this, the owner of the trademark can file a suit or take legal action for trademark infringement. Thus such trademark infringement is liable to be punished and the owner of the trademark can claim compensation for the same.

The trademark law also provides criminal remedies for trademark infringement which is in terms of imprisonment or fine or both. One can also take action against trademark infringement through the means of Dubai customs which filters the trademark infringement cases and products which infringe the trademark. This makes the trademark protection of products more efficient and well protected.[7]

Thus to ensure the rights over a trademark, it is important to register your trademark in UAE. This protects business innovations through the means of a trademark.[8] The registration of a trademark provides validity and protection in case another person copies or uses the same trademark which is similar to yours. If your trademark is not registered in UAE then you cannot take legal action against another business and enterprise.

TRADEMARK LAWS IN GERMANY

All German trademark applications need to be filed at the German Trademark and Patent Office (DMPA).[9] German trademarks are governed by the trademark act, which is implemented by European Union trademark directives. [10] Trademarks that are not opposed by DMPA and fulfill all the standards are qualified to be registered as a trademark. All German trademarks cover the entire federal republic of Germany[11]

In Germany, there are specialized ordinary courts for enforcement of trademarks infringement. They are also competent to tackle the disputes related to unfair competition and domain name dispute resolution policy.

PROCEDURE FOR TRADEMARK REGISTRATION IN GERMANY

One of the steps for the trademark registration procedure is to publish the trademark in the official gazette for three months. During these three months, anyone in Germany with a similar or identical trademark may file an opposition against the trademark published in the official gazette. No trademark gets an extension from this period of three months.

Opposition to the trademark may be filed by the owner of the already registered trademark or owner of trademark who previously got such a trademark registered. In Germany, a trademark opposition is filed in writing and a nominal fee is to be paid.[12] The German trademark office will see whether the trademark complies with the standards of the trademark.

In Germany trademarks are valid for a period of three years from the date of filing of the application. If the owner wants to do renewal of the trademark then same can be done by filing an application for renewal one year earlier from the date of expiry of the trademark. Also there is a provision of a grace period which consists of six months. In this grace period a renewal application can be filed by paying late fees.[13]

It is mandatory to use the trademark within the five years after registration. If such trademark is not used then it is liable to be cancelled on the ground of non use. Such

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CONCLUSION

Through analysis of trademark laws of different countries, it can be safely concluded trademark registration is of utmost importance. It is vital to know that trademark registration provides various privileges to the owner of the trademark. Registration helps to tackle the problem of trademark infringement.

Trademark infringement is one such common problem which is prevalent in almost every country. Thus to give due credit the owner of trademark, registration is a must.
It can be safely concluded that all these three countries have their own set of statutes to govern trademark laws. Though they different rules but all rules have same essence which to punish the wrongdoer.
Also the procedure for registration of trademark tend to vary when we move from one country to another but the basic outlines which includes publication of trademark in the official gazette remains the same.
Another key aspect to keep in mind is that in all these three countries trademark is registered for a certain time period and after the expiry of that period the trademark need to be file for renewal.

Thus this analysis of trademark laws is essential in order to gain insight about variety of laws prevalent among other countries. This helps to get better understanding of different laws. Hence it helps to understand all kinds of dimensions of trademark laws.

[1] https://www.wipo.int/about-wipo/en/

[2] https://www.bitlaw.com/

[3] https://www.uspto.gov/sites/default/files/documents/tmlaw.

[4] https://iclg.com/practice-areas/trade-marks-laws-and-regulations/usa

[5] http://diazreus.com/protecting-your-trademark-in-the-uae

[6] https://www.wipo.int/edocs/lexdocs/laws

[7] https://www.mondaq.com/trademark/736132/new-trademark-application-procedures-in-uae

[8] https://www.dlapiperintelligence.com/goingglobal/intellectual-property/

[9] https://thelawreviews.co.uk/edition/the-trademarks-law-review-edition-3/

[10] https://www.worldtrademarkreview.com/portfolio-management/trademark-procedures-and-strategies-germany

[11] https://iclg.com/practice-areas/trade-marks-laws-and-regulations/germany

[12] https://www.lawyersgermany.com/register-a-trademark-in-germany

[13] https://igerent.com/trademark-registration-germany

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Impact of Covid-19 on the Aviation Industry

Post author By ashwin
Post date November 24, 2020

By: Mayank Singh

Aviation is one of the most influenced industry during Coronavirus emergency which has happened because of magnitude of pandemic. This Pandemic has resulted large scale emergency which tends to suspension of flights and limitations on venture out universally to hinder the spread of infection. It is conceivable to watch the effect of COVID-19 on the flight business in every region including Europe, North America, Asia-Pacific and the remaining part of the world. In the country like United States, for instance, after the public Wellness crisis occurred due to COVID-19 episode, practically the entirety of the region is on outright lockdown, which Consequently, limits homegrown travel inside the nation. Nations like Spain, Italy, France, and India are under full lockdown and a wide scope of flights are ended until further notice.

A report of International Air Transport Association says that Aviation industry may endure misfortune on income as much as 113 billion dollar in this emergency. Around 4.2 billion explorers were carried around the globe in 2018, according to the World Bank Organisation. Fragments that were driving the flying business before the COVID-19 pandemic join expanding extra cash the whole course over the globe, the presentation of low-passage planes, developing by and large budgetary exercises, new travel plans, and some more. Besides, substitution of creating business plane has likewise contributed far and away to the market headway.

The primary elements affecting the aeronautics business since the pandemic remember the drop for visits and travel as an enormous number of global and homegrown flights are being dropped worldwide to check the infection’s transmission. Governments over the globe deny outsiders’ visas and lock up affected regions which is also one of the noteworthy purpose behind the log jam of the flying business. The International Aviation division has different portions of Air lines, from which, alongside cooking and other assistance giving firms, traveller aircraft section is required to get generally influenced.

Carrier organizations affecting the airplane producing businesses may likewise be seeing the crossing out of an airplane request in the short term. Driving flying organizations which are in effect universally affected incorporate Airbus, Qatar Airways, Lufthansa, China Eastern Airlines, Emirates, Boeing, American Airlines Group Inc. what’s more, Delta Air Lines. For evident reasons, Qatar Airways has suspended all of its trips to and from Italy it was one of the most noticeably terrible hit nations by the COVID-19 pandemic. The organization has consented to downsize its activity which incorporates diminishing flights and dispensing with less savvy airplane. As a prudent step of COVID-19 episode, Qatar Airways had grounded all its ten A380 airplane until 31 May 2020.

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Furthermore, owing to the pandemic, Emirates likewise finished much of its traveller traffic. By and by, the company looks for rescue classes by aircraft and air terminal guiding partnerships. In Europe , for example, air terminal supervisory organisations are reliant on the procurement of $15.4 billion missing due to a pandemic. It is researched that air terminals in Europe are expected to receive 700 million fewer passengers, 28 percent less than previously expected.

Turning to economical aspect, the phenomenal decrease in avionics and business activity has incapacitated air terminal income sources. In the subsequent quarter, the normal reduction in by and large air terminal incomes on a worldwide scale is figure at $39.2 billion (USD) and over $97 billion for 2020. Air terminals must continue meeting their capital costs responsibilities as they stay depicted by fantastically high repaired costs essential for keeping and working the system sections of the air terminal, including runways, runways, covers, halting stands and terminal structures. The impact of COVID-19 has hence achieved an existential peril to air terminals and to the flying industry unhindered.

The International Air Transport Association ( IATA) has resurrected its study of the financial effect of the general growth emergency of the novel (COVID-19) on the overall air transport market. IATA is also watching cumulative compensation events for the explorer company in 2020 of between $63 billion (in a situation where COVID-19 is contained in new business divisions and over 100 instances in current business divisions beginning at 2 March) And $113 billion (with the broader distribution of COVID-19 in this situation). No estimates of the effect on payload exercises are yet available.

The past IATA analysis (given on 20 February 2020) placed a $29.3 billion decline in income based on a condition that would see the benefit of COVID-19 largely limited to business sectors linked to China. The virus has spread to more than 80 nations since that time, and forward appointments on courses beyond China have been badly affected.

Budgetary sectors of the economy reacted positively. After the start of the flare-up, aircraft share prices have dropped by approximately 25 percent, with about 21 values concentrating more noteworthily than the drop that occurred at a similar point during the 2003 SARS emergency. To a large degree, this decline as of now costs a lot more remarkable than our previous inquiry in a stun to business profits.

To consider the developing circumstance with COVID-19, IATA assessed the likely effect on traveller incomes dependent on possible situations.

The unexplained extension attributable to COVID-19 is almost unimaginable. The possibilities of the company in a large part of the world have gotten ug in minimally more than two months. How the infection can expand is muddled, but whether we see the effects on a few industry sectors and a $63 billion income misfortune, or a more pervasive influence that triggers a $113 billion, loss of income in this pandemic.

“Numerous carriers are cutting limit and taking crisis measures to diminish costs. Governments must observe. Aircrafts are giving a valiant effort to remain above water as they play out the imperative undertaking of connecting the world’s economies. As governments look to upgrade gauges, the carrier business will require thought for help on duties, charges and space portion. These are uncommon occasions,” said Alexandre de Juniac, IATA’s Director General and CEO.

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Impact of Covid-19 on Indian Airlines.

In the budgetary year 2021, the Indian aeronautics division is probably going to lose up to $ 4 billion, warning firm CAPA India has stated, raising the misfortune gauge from the past $3.6 billion.

CAPA India likewise talked about a higher capitalization necessity for Indian carriers, up from $2.5 billion to $3.5 billion of every investigation delivered on July 3. Systematically, the organization said the Indian flight industry could be decreased from the greater part twelve, including Air India, IndiGo, Go Air and Spice Jet , to just a few players now.

“Restructuring seems more likely and would result in a very drastic shift in the industry ‘s structure. If timely recapitalization does not happen, India might be heading for a two-three airline market,” it added. Ongoing traffic has generally included fundamental repositioning traffic, with travellers that were stuck in an inappropriate spot when the lockdown was declared getting back to their headquarters. Optional travel has been restricted, as reflected in the way that in excess of 90 percent of appointments have been for single direction travel, contrasted with 40 percent earlier with COVID,” the report said.

Despite the fact that the administration has permitted carriers to work up to 45 percent of their mid year plan yet it has had little effect as traveller load drifts around the midway imprint. Passages, which have been topped inside a range, have would in general be nearer to the lower end of the band, CAPA India said.

Ahead of Covid-19, one of the fastest rising aviation markets in the world, India is bracing for rough days ahead. Market watchers fear that a complete lack of government support will trigger a shakedown of India’s airline industry, which could have a lasting impact on the once upbeat demand for jet fuel in the country. In seven of the last 10 years, having seen double-digit percentage rise, In the first half of 2020, Indian airlines saw passenger numbers collapse 50 percent year on year to 35.2 million, or the lowest since 2014.

Airfares have also been put under pressure due to a decline of almost 30 per cent in bookings to destinations hit by viruses. As a consequence, airfares to those destinations have declined by 20-30%. With domestic travellers postponing or cancelling their travel plans, domestic traffic growth is also steadily being impacted.

Many companies announced a decline in domestic travel this summer of more than 30 per cent compared to last year. Airfare has been reduced by 20-25% on common domestic routes and airfares are also expected to remain subdued for the summer season. Aircraft transporters’ money adjusts are coming up short and many are nearly insolvency. Likewise, the crisis could provoke loss of occupations and pay cuts. A couple of airplanes have requested various from their laborers to go on leave without pay. Air Deccan has suspended errands and sent laborers on unpaid leaves.

In the interim, the travel industry service has refered to Confederation of Indian Industry (CII) evaluations to recommend the loss of income to the travel industry can run between Rs 72,000 crore and Rs 1.58 lakh crores in 2020-21. As per the service, marked lodgings will endure the greatest shot in the travel industry area, trailed by visit administrators. In view of the fundamental gauges via airlines,the division might be set for a decrease of 50-60% in worldwide rush hour gridlock and up to a half drop in homegrown rush hour gridlock, the note said. It additionally included that “there may be a critical however brief loss of both immediate and circuitous positions in the division.”

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While a few carriers have begun tolerating advance appointments fully expecting facilitating of the lockdown after April 14. In resuming domestic operations, Indian carriers are using a hawk-eyed approach; however, the pace of PLFs would be a main concern. For both 30-day/15-day ticketing periods, the brokerage said its airfare tracker indicates average yield across subway routes has decreased by ~30 percent year to date.

According to flight regulator Directorate General of Civil Aviation, local air explorer traffic hung 82.3% in July differentiated and the very month a year back. From January to July, airplanes passed on a whole of 37.28 million voyagers, a rot of 54.84% appeared differently in relation to the relating time period a year back.

It likewise assessed that because of such misfortunes, “all things considered, some airplane may must be grounded” and “a critical decrease is additionally expected noticeable all around payload took care of at air terminals across India.”

Conclusion

Aviation Industries are investing additional amounts of energy to guarantee appropriate sterilization and fumigation of air terminal terminals just as the purification of planes. Be that as it may, notwithstanding taking such prudent steps it is as yet hard to manage the dread ingrained in the psyches of travelers voyaging which consequently is influencing the general business of the flying business. On head of that, so as to control the spread of this deadliest infection government confined all worldwide trips to land in India. This will bring about loss of income and money related pressure.

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Analysis of Competition Law Issues in the Facebook-Jio Deal

Post author By ashwin
Post date November 24, 2020

By: Abishek TK

Jio – Facebook Crossover: A Financial Entente:

Facebook is one of the only apps used by almost 2.5 Billion users, making the social media platform the world’s largest. While Facebook conquers the world, Whatsapp conquers India with approximately 200 million users, making it the country’s largest. On 21^st April 2020, Facebook CEO, Mark Zuckerberg, told the world that the Facebook was teaming up with Reliance Industries. Facebook had purchased a total of 9.99% stake in the Reliance Industries. The 5.7-billion-dollar deal pushes Reliance Industries ahead in its plans of facilitating the launch of its new commerce business. In 2019, Reliance Industries Chairman Mukesh Ambani had other primary contributors to his debt reduction plan with approximately $15 billion deal with Saudi Aramco for a 20% stake in Reliance Industries’ refining and petrochemicals business and a ₹7000 crore for a 49% sale in its fuel retail joint venture to a British firm BP. Usually, any merger between companies or corporations is a tedious process. Out of some approvals, be it regulatory or otherwise, the most critical one is the approval of Competition Commission of India. In order to complete a deal that crosses the thresholds given under Sec. 5 of the Competition Act, 2002[1], the approval by Competition Commission of India is compulsory. Another rule is that, Section 6(2) of the Competition Act, 2002, examined with Regulation 5 of the Combination Regulation confirms a suspensory reign, i.e., the approval must be obtained before the deal is finalized within the United States. Though the deal sounds bold and strong, which it does, can still encounter anti-trust issues. Starting with the multi-billion-dollar investment into Jio will have to be appraised and authorized by means of India’s opposition regulator. For this to happen, the Competition Commission of India will have to go forward and look at the proposed deal and verify that it does not cause appreciable adverse effect on competition within the marketplace. The responsibility of the Competition Commission of India is to analyze now not only the capacity of destructive results on competition how much ever additionally the capability worries it may offer upward rush to. It would be more intriguing and interesting to see if the minority stake purchase in India’s major telecom empire would provide any regulations to Facebook.

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Section 4 of Competition Act, 2002 sets down arrangements identifying with maltreatment of predominance which obviously expresses that a prevailing element ought not utilize its situation of solidarity to make hurt the contenders and customers in the business sectors of the nation. The Competition Act, 2002 in segment 19(4) has set out specific variables which help in deciding if an element is predominant in an applicable market or not. Prior to deciding if the arrangement among Facebook and Jio Platforms can prompt the act of maltreatment of strength by the two substances, it is basic to realize whether Facebook’s WhatsApp pay and Jio Platform’s JioMart are prevailing in their pertinent market or not.

Establishing Dominance:

Jio and Facebook are both emperors in their respective fields. According to the Telecom Regulatory Authority of India, 32% stake is owned by Jio in the 1.15 billion Indian mobile services industry. It possesses the highest number of customer base and revenue-sharing share in the telecom industry. This means, Jio has an overall customer base of 369.93 million, exceeding its rivals, Bharti Airtel and Vodafone- Idea. Regarding Facebook, it basically operated via three platforms- Facebook, Instagram and Whatsapp. As for Whatsapp, it currently has a solid 400 million users in India[2]. These 400 million users are among the 600 million people who get right of entry of internet. A fragment of effectiveness compared to Whatsapp can be seen in applications like Hike, WeChat and Telegram.

JioMart is an online staple help which gives conveyance administrations of basic food item and fundamental things from close by kirana stores of the nation. JioMart right now works in just three spots of the nation for example Navi Mumbai, Thane and Kalyan. The important market of JioMart is by all accounts an online staple conveyance administration. It is appropriate to take note of that JioMart in this market has under 5% piece of the pie and furthermore is another major part in this market. It can influence neither the opposition nor the rivals in the online basic food item administration market of the nation. Subsequently, in the wake of investigating the components referenced in segment 19(4) of the Competition Act, 2002, it tends to be reasoned that JioMart is certainly not a prevailing part in its important market.

Jio is looking forward to revolutionize ‘JioMart’ in order to merge small and medium sized ‘kirana’ businesses. This would firstly enhance mother-pop shops within the domestic and local markets by tying them to the digital platforms. Once this is over, it would try to penetrate another market by utilizing the dominance of Whatsapp. If all these are successful, Whatsapp might allow JioMart to function through the messaging platform itself. If this is carried out in the manner that Whatsapp comes with default JioMart platform, it could cause an abuse of dominance under Section 4(2)(d) as downloading Whatsapp would be the main agreement the JioMart will be kind of a given in itself. The disadvantage in that kind of a strategy is, customers will not be able to use any other embed e-commerce portal on Whatsapp. This will become unfair and cause disturbances in the market as it might leave the customers with no choice but to accept the given deal.

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The said deal may have an impact on payment apps due to the establishment of Whatsapp Pay project long-stalled by Facebook. The partnership with Jio will establish the payment service for itself. Once Whatsapp Pay enters the field, industry players like Google Pay, Paytm, and Pay will face a tough competition. People will easily be able to text and pay simultaneously without switching apps. To keep things in balance, the Competition Commission of India will have to consider whether Facebook and Jio would become dominant in the relevant markets, potentially abusing the dominant position in order to monopolize the field using Whatsapp Pay. Since the combined power of Jio and Facebook would make it difficult for any other platform to compete, the CCI should analyze whether it would be likely that any anti-competitive acts by Jio or Facebook would create new monopoly in the other relevant markets.

Appreciable Adverse Effect on Competition:

Determining the resources and market positions of the combines techno-heads is difficult, especially in the technology sector. Google LLC[3], CCI found that there is a need to now not only depict the standard applicable marketplace but also related to relevant markets which have been anguished by the behavior of the concerned parties. Section 20 (4) lists that factors that the Competition Commission of India should not forget to include if there is any substantial destructive effect on the competition arising from the said combination.

The quintessence of this combination is to check for horizontal or vertical overlaps. If there is no appearance of horizontal overlaps, there is a strong possibility of vertical integration. For example, Jio introduces internet access to smartphones, smartphones with internet can access Whatsapp, which can ultimately be combined with JioMart. Though this is not the ideal vertical integration, but the use of dominant function in a single market to move into a new marketplace would possibly be to have an adverse effect on the natural competition in the ‘physical’ trade market. Strategic investment, when seeks to impale a specific segment by making use of the leverage on their respective fields to arrive at a completely new product, criteria has to be comprehensive in order to check and verify the potential adverse effect on competition, if any. The United States court imposed 5 billion dollars fine on Facebook for violation of privacy is itself a warning on the Indian regulators to intervening in this a way achieving the deal specifically, to protect the Indian Start-Up movement, which is probably an important bulkhead of the Digital India ship.

Platform Neutrality:

Platform Neutrality, as the name proposes, comprises of impartiality toward any item showed on a market. This standard is abused in occurrences of combination, in which the stage holds a double job through acting each as a mediator and a commercial center contender. Since the stage is a pool of customer insights, it offers the owner business endeavor and side to improve its administrations through dominatingly dispensing bogus hunt rankings and serving one-sided pointers sooner than its customers. Courses of action like these outcomes in the special treatment being concurred to the office’s in-living arrangement cloud kitchen brands, building up an irregularity in the reasonable resistance in the pertinent zone.

It is appropriate to take note that the monstrous e-exchange associations, for example, Amazon and Flipkart have constantly been underneath the examination of the Courts for disregarding the stage impartiality strategies. All India Online Vendors Association had blamed each of those organizations for manhandling their strength inside the relevant commercial center by giving special solutions for there to some degree possessed producers. After due examinations concerning this depends, the CCI had unnoticed the cases of them disregarding any popular rivalry standards. Notwithstanding, rehashed charges by the method of equivalent organizations made the NCLAT award a test into this issue again.

Network Effect:

The Network Effect, additionally called network externality, is the increase picked up by method of the officeholder clients while an additional individual joins the gathering. Its utilization is particularly generally far reaching inside the time area in which the enormous network is a bit of leeway to the clients and the got data fills in as a little something extra for its proprietor. Henceforth, there lies no competition inside the truth that having an enormous base of records can bring about an endeavor achieving a prevailing situation inside the market. This predominance, in sure occasions, can go about as an essential for organizations in leading enemy of forceful conduct. The organizations with the guide of keeping up their matchless quality in a solitary pertinent market contribution to each other material market, in this manner mishandling its energy to develop predominant in both those business sectors. Such moves are named as utilizing and are denied underneath Section four(2)(e) of the Competition Act, 2002 (“the Act”).

Carefully predominant associations like Google have utilized their strength in the past, utilizing its got realities to sell its own administrations for example Google Flights, Google Maps, etc. The creators battle that the arrangement whenever did, might be each other case of this type of misuse. As each Facebook and Jio are at prevailing situations in their particular business sectors, they have an unbridled admittance to realities which can be utilized for their own one of a kind business advantage. For example, WhatsApp by means of its settlement with JioMart can assemble a tremendous heap of data at the admission styles of the customers in India, which later can be used for the ad of the JioMart stage through Facebook. Also, if WhatsApp goes to a choice to make Jio Payments Bank on the grounds that the on line UPI-principally based value elective, it’ll achieve Reliance Companies accessing its total client base, which incorporate the records of its adversary telecom partnerships. Each one of those points of interest blended have the capacity of making Jio and its auxiliaries predominant exclusively dependent on the realities that it recognizes associations own, subsequently which remember it for the ambit of utilizing underneath Indian Competition Act.

Deep Discounting:

Deep Discounting, normally named as ruthless evaluating, happens while a monetarily wealthy organization costs its item at a significantly decline charge contrasted with the contrary organizations inside the commercial center. While the partnerships secure such developments as a component of their expansion approach, the overwhelming development inside the reliance of its client’s outcomes in them achieving a place of intensity, unjustly. This can be mounted by method of depending on Section 19(4)(f) of the Act, which offers for ‘buyer reliance’ as one of the justification for evaluating the predominance of an organization. So as to downsize the burden of such enemy of forceful tendencies, such estimating has been described as maltreatment of strength under Section four(2)(a)(ii) of the Act, making it violative of the standards that ensure honest rivalry in the business sectors.

Jio, inside the past, has been blamed for savage valuing for its net administrations. In truth, following this system, it has developed to be one in everything about most significant telecom producers in India. Subsequently, the creators battle that the arrangement has the capacity of monetarily backing the stage to present profound limits for their items, building up a tremendous distinction in the expenses inside the market. This differential valuing by method of drawing in the clients by means of its uncommon decreases can pressure out the contrary e-staple brands inside the relevant commercial center. While these limits may prompt a fast time-frame advantage for its clients, the minimization in their decisions will achieve a drawn out misfortune. JioMart by utilizing sorting out its imposing business model will in the end be equipped for help its expenses unnecessarily, in this way constraining its customers to search for their items at some random charges.

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Conclusion:

The objective of Competition Act, 2002 is to guarantee the free progression of exchange and keep the elements from stopping rivalry on the lookout. In the 21st century, the idea of shopper government assistance can’t be deserted in any of the situations. The intensity of the CCI gave by the Competition Act, 2002 is restricted to a degree. Indian Competition Law doesn’t punish endeavor to turn into a prevailing element and this is the greatest downside.

In the current arrangement, Facebook and Jio Platforms through its administrations WhatsApp Pay and JioMart separately will endeavor to get prevailing in their pertinent market by utilizing unscrupulous strategic policies. Notwithstanding, CCI can’t stop such practices because of absence of arrangements in the Competition Act, 2002. The ideal opportunity for a change has shown up and the Indian Legislature should embed such arrangements in the demonstration so as to enable the CCI to manage such unreasonable practices in the nation.

[1] Section 5, Competition Act, 2002.

[2] Manish Singh, WhatsApp reaches 400 million users in India, Tech Crunch, (26.07.2020), https://techcrunch.com/2019/07/26/whatsapp-india-users-400-million/.

[3] Umar Javeed v. Google LLC, Case No. 39 of 2018, dated 16-4-2019.

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What is the difference between IPC and CrPC?

Post author By ashwin
Post date August 1, 2020

What is the difference between IPC[1] and CrPC[2]?

According to the National Crime Records Bureau, in 2018, India registered more than 50 lakh criminal cases. It is vital for the citizens of any country to know the laws and understand the differences between their applications. The maxim: Ignorantia Juris Non-excusat (Ignorance of the law is not an excuse) is embedded in the Indian Penal Code. Ignorance of Law or lack of knowledge does not stand as a defence in the court of law. India, as a country has more than 1200 laws in existence. However, crimes in India are regulated by:

The criminal justice system in India is divided into two parts:

First Part: Substantive Criminal Laws

These laws provide for the punishments for the offenders by the extent of the crime committed.

Second Part: Procedural Law

This law provides a process for establishing the offenders’ guilt and imposing the punishment prescribed under the substantive criminal laws.

The Indian Penal Code, 1862

The Code is the country’s primary criminal Code and was drafted during the British Raj in the year 1850 and was presented to the then Legislative Council in the year 1856. It came into force on 01st January 1862.

The Code covers various offences (divided into multiple categories) and the related punishments for the said crimes. For instance, Crimes against the body (Murder, kidnapping, Culpable homicide, etc.), Crimes against property (theft, dacoity, etc.), Economic crimes (Cheating and Counterfeiting) and various other crimes.

Criminal Procedure Code, 1973

The Code is the procedural law which provides a detailed procedure for punishments under the penal laws. It thereby enforces and administers the Indian Penal Code and various other substantive criminal laws. The Parliament enacted the Code on 25th January 1974 to consolidate and amend the law relating to Criminal Procedure.

The Criminal Procedure Code is read along with the Indian Penal Code, 1862 and the Indian Evidence Act, 1872. There often exists a state of perplexity concerning the difference between the Indian Penal Code, 1862 and the Criminal Procedure Code, 1973. Let us now look at the differences between the two legislations.

Difference between the Indian Penal Code, 1862 and Criminal Procedure Code, 1973

The Indian Penal Code is a substantive law[3], whereas the Criminal Procedure Code is procedural law.[4]
The Indian Penal Code states various crimes and classifies them into multiple categories. The Code also prescribes the penalties and the punishment for the respective offences. On the other hand, the Criminal Procedure Code defines the procedure that the police take to investigate any violation after having committed any crime mentioned under the penal laws.
The Indian Penal Code aims to provide a primary penal code in the country for giving punishment to the wrongdoers. On the other hand, the Criminal Procedure Code’s main motive is to provide for binding procedures that must be enacted during the administration of a criminal trial.
The Criminal Procedure Code, 1973 provides for the courts and Magistrate’s powers, while the Indian Penal Code does not.

Let us now take an example to understand the difference between the legislations better.

Izzie to kill Mathew enters his house and murders him by hitting him with a hammer and slitting his throat. Section 300 of the Indian Penal Code, 1860 defines ‘Murder.’ And Section 302 of the Code prescribes the punishment for the said crime. The section specifies that any person who commits the act will be punished with death or life imprisonment.

How will Izzie be punished for the crime committed?

Murder is a non-bailable and cognizable offence. The Criminal Procedure Code, 1973 thus specifies a procedure to be followed to determine the offender’s guilt, whether or not bail will be granted, evidence to be taken into account, trial, investigation and impose the individual penalty.

CONCLUSION

The three primary legislation governing criminal law in India: Indian Penal Code, Code of Criminal Procedure and the Indian Evidence Act continue to play an essential role in the courts of law for the effective execution and justice administration. Due to the rise in crimes and criminals, it becomes vital for all citizens to learn the country’s primary criminal laws’ fundamental differences.

[1]The full form of IPC is Indian Penal Code

[2] The full form of CrPC is Criminal Procedure Code

[3] Substantive laws refer to those laws that define individuals’ rights and duties and the respective punishment and organizations.

[4] Procedural Laws include those rules that govern the process of determining individuals and organizations’ duties and rights.

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Star India Private Limited v. Leo Burnett

Post author By ashwin
Post date June 8, 2019

– By Apoorva Mishra

The plaintiffs entered into an Agreement dated 9th April, 2000 with Balaji Telefilms Pvt. Ltd., in order to create, compose and produce 262 episodes of a television serial entitled “KYUNKI SAAS BHI KABHI BAHU THI”. Since then Balaji has produced episodes of the serial and their services were engaged by way of contract of service and as such the plaintiffs are the first copyright owners under Section 17 of the Copyright Act. Balaji has devised the original artistic work depicting inter alia the logo and the title in a peculiar stylized font and containing as its essential features the words “KYUN KI SAAS BHI KABHI BAHU THI” and as per the agreement plaintiffs have become the owner of the said artistic work. The serial had acquired immense goodwill and reputation so much so that the public associate the said serial with plaintiffs and plaintiffs alone. Plaintiffs started endorsing the serial and the characters in form of products and services for a fee. In February 2002, the defendants came up with the commercial for a consumer product “TIDE DETERGENT” telecasting it with a title, “KYONKI BAHU BHI KABHI SAAS BANEGI” and characters of a grandmother, mother-in-law and daughter-in-law, similar to the characters of J.D., Savita, Tulsi as in the serial of the plaintiff. The plaintiffs contended that there has been an infringement of copyright because an average viewer will have an impression that the plaintiffs are endorsing the defendant’s product and there is a connection between plaintiffs in the said serial and the defendants and their product. It is contended that the defendants are not entitled to do so without obtaining the prior consent and/or the permission from the plaintiffs and they have misrepresented the public at large and on account of this plaintiffs have suffered loss due to continuous act of infringement of copyright and passing off of the copy to the defendants. The matter was brought before the Hon’ble Bombay High Court raising several issues:

First, Have the defendants by making the commercial film, violated and/or infringed the plaintiffs’ copyright in the T.V. serial “KYUN KI SAAS BHI KABHI BAHU THI”?

The court ruled that anything which is not a substantial copy of the film shall not be held liable for copyright infringement. Therefore, defendants by making the commercial film have not violated and/or infringed the plaintiffs’ copyright.

The court has rightly dealt with the above issue, for the second film to infringe the copyright of the first film it has to be the exact copy of that film which is not the case here. The plaintiff’s film is a work of 262 episodes whereas defendant’s advertisement is a work of 30 seconds in which only for 8 to 10 seconds the characters appear as a prelude to the tide detergent. The major and substantial part consists of tide detergent. Nothing is common between the two scripts. The defendants have put in their own independent skill and labour in making of the advertisement whole sole purpose is to promote the Tide detergent. The models are same in both the film. These models are professional and free to contract. There cannot be, therefore, any act which would amount to infringement by using the same models. Even if the idea is borrowed there, can be no copyright in the idea.

Second, Have the plaintiffs’ proved the defendants have infringed the plaintiffs’ artistic work?

The court denying the contentions of the plaintiffs coined the term Originality. Originality merely means effort expanded or that it involves skill, labour and judgment in its creation. Under Section 17 of the Copyright Act, the Author of a work is the owner of the copyright therein. The defendants have contended that the logo consisting of the two hands is a symbol in common use and in the public domain and open to anyone to use. The holding hands well known form of representing the handing over of something from one to another and are a commonly used symbol and they denied on the fact that the plaintiffs have put any skill, labour or some sort of judgement in its creation but has merely taken the lettering style from a source easily available in public domain. Hence, there is no originality, therefore no copyright.

Third, Have the plaintiff’s proved that the defendants are guilty of passing off their reputation and goodwill in the T.V. serial?

The court held that the defendants are not guilty of passing off as they do not satisfy the essentials of passing off per se. Plaintiffs’ serial is shown on Star Plus Channel which is not owned by the plaintiffs. Goodwill does not accrue to the plaintiffs. The plaintiffs have no goodwill or reputation. It is the case of the plaintiffs that their serial/film is associated exclusively with the Star Plus Channel by the public and public is well aware that it can be seen only on Star Plus. Also, the T.V. commercial will not cause any harm to the plaintiffs’ serial or their reputation because the field which the plaintiffs’ serial occupies as a film/soap opera is different from the field of defendants’ commercial that of an advertisement of detergent Tide. Even the activity area is also not in common, therefore there is no misrepresentation.

On the facts of this case, there is no fictional character involved like ‘Superman’, ‘Shaktiman’ Teletubbies’. In the serial there are ordinary people in common life who plays the role of some character or the other. At least from the material on record there is nothing special in any, of the characters of which it can be said that they have gained any public recognition for itself with an independent life outside the serial. This, the plaintiffs have failed to establish. It is also not a case of one film against another film and further the defendants are not merchandising any character from the serial by means of their T.V. commercial. There should be in actual character merchandising and not mere potential of character merchandising.

The court, after analysis the entire case, rightly pronounced the judgement in favour the defendants. The defendants are just promoting their consumer product “Tide” via a T.V. commercial which in no way is connected. The field of activity of the plaintiff and defendant are totally different. No likelihood of damage has been caused to the plaintiff. The characters of which the plaintiff claims to be copied are simple general roles of our Indian society and the defendants are simply targeting the audiences of India who will relate easily to these household roles and nothing special that the plaintiffs have done with these characters for which they claim a copyright on them. This isn’t a case of misrepresentation or fraud and no real damage has been caused. No prudent person will confuse the advertisement with plaintiffs’ serial. Moreover, for character merchandising the plaintiffs should prove that the public would look at the character and consider it to represent the plaintiffs or to consider the product in relation in which it is used as has been made with the plaintiffs’ approval. But the plaintiffs have failed to establish this. In my opinion, the defendants have rightly pleaded that they are a major consumer goods Company, well known in their own right and their products including Tide have their own reputation amongst the public; Tide will be associated with the defendants and not with the plaintiffs.

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Compulsory Licensing of Patents

Post author By ashwin
Post date June 8, 2019

– By Apoorva Mishra

Compulsory licensing is an involuntary licensing where the licensor is unwilling to grant the license to the willing licensee, but this entire agreement of compulsory licensing is enforced by the state, by which the licensor has to transfer the rightful authorization of the patent to the licensee, against all his wishes. Government is basically the protector and acts as a guardian for the public at large. Therefore, for the benefit of nation, it has the right to grant the patent and next moment take away the patent and patentee’s monopoly over it. The requirements of the society at large supersedes against the rights of the patent holder to answer the pressing public requirements. Following situations may attract compulsory licensing where IP holder:

Charges unfair and discriminatory prices; or
Limits production of goods and services; or
Restricts technical or scientific development of goods and services; or
Desecrates consumer welfare.

Internationally, compulsory licensing has been supported saying that it helps in catering to the needs of the public at large and development of developing and underdeveloped countries. Compulsory Licensing has been mandated by several agreements like WIPO (World Intellectual Property Organization), Paris Convention for the promotion of industrial property. TRIPS has envisaged several conditions for issuance of compulsory licensing:

The person or company should apply for licensing after 3 years to the grant of patent.
Before applying for compulsory licensing, the person or company should make an attempt for voluntary licensing.
The person or company then should apply to the board for compulsory licensing if the proposed user has made efforts to obtain authorization from the right holder on reasonable commercial terms and conditions and that such efforts have not been successful within a reasonable period of time.

In India, we have seen a growth of many foreign companies reason being they hold knowledge and they rule the terms. Therefore, there exists a chance that these companies can abuse their positions. Compulsory licensing of IPRs in cases of such abuses would be an apt remedy that will deter these companies from abusing their dominant positions. Keeping in mind Indian conditions compulsory licensing will spur growth and development in Indian industrial sectors. Keeping in mind the size of Indian market the incentive for innovation will not erode to the extent that might deter companies from entering in to innovative endeavours as courts have granted reasonable royalties in cases where compulsory licensing has been awarded. Compulsory licensing will make the products more accessible to public and it will be beneficial for public welfare.

The developing and the under developed countries are not much concerned about protection of patent laws as much as developed countries are because they don’t have resources to spend on development of costly mechanism to ensure protection of patents.

There are few reasons behind this:

by allowing piracy, developing and underdeveloped countries can ensure availability of needed goods and services to their citizens at affordable prices
The local industries which produce counterfeit goods employee thousands of workers and therefore reduce unemployment.
In order to advance in science and technology, they need maximum access to intellectual property of advanced nations.

More than 80% patents in developing and underdeveloped countries are owned by citizens of technologically advanced countries. Consequently, their governments are not willing to spend huge amounts in developing effective administrative mechanism to enforce IPRs of citizens of advanced states.

The Government will, however, pay royalty to the patent holder for using his patent without his permission, but this will in turn discourage the patent holder from making any further inventions or innovations. The discouraged Research & Development shall lead to deteriorating economic growth. The developing or under-developed countries shall refrain from investing in R & D, indirectly affecting the economy, and will settle for generic goods. This might increase the risk of goods turning into inferior quality. Ultimately, as a result of weak intellectual property regime, a country becomes less competitive, and brain drain is an obvious result.

Compulsory licensing becomes inevitable to deal with the situations of “patent suppression”. By incorporating an effective mechanism of compulsory licensing, governments of developing countries may pressurize the patent holders to work the patent to maximum national advantage. The threat of non-voluntary licensing may be helpful in negotiating a reasonable price of the needed drug acceptable to both the patent owner and the government. Compulsory licensing might be necessary in situations where its refusal may prevent utilization of another important invention which can be significant for technological advancement or economic growth.

Compulsory licensing ensures that a good number of producers or manufacturers are there to cater to the needs of society; it spurs competition and consumer welfare. Those who argue against it saying that it leads to erosion in incentive for innovation forget that a right is always accompanied by a corresponding duty, and failure to perform that duty might have its implications in law.

The abuse of patents is a very likely to occur where the patentee has its rights protected under Patent laws. The patent holder has monopoly rights but they are more likely to abuse. The patent holders are often tempted to indulge in to anti-competitive practices and they try to extend their monopoly into areas where they do not have rights protected by IPRs. Software companies like Microsoft, several pharmaceutical companies, as discussed above, are protected under the patent laws and most of the time they are the sole manufacturer. So this gives them an opportunity where they can dictate their terms over the entire market which might lead to exploitation of others right in the market. In such a scenario, compulsory licensing comes into play, which acts as a remedy to abuse of patents, where government intervention leads to increase in the versatility of the market leading to a monopolistic market rather than a monopoly, the consumers have a choice and the product will be easily available, where the opponents have argued that compulsory licensing will lead to discouragement for innovations, but this also true that this will lead to a heated competition, which will in return lead to a peer pressure over the patent holder to work more over his product, get distributers, improve his research and product and make it available to the public at large. This will lead to an increase in the economy. There are reasonable apprehensions that FDI may dry up if compulsory licensing is granted as a remedy, to that essential facility doctrine must be adopted, so that only what is essential and necessary should prevail.

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