Tag: study legal studies online

Categories
Blog

Media Trials

By: Tripti Pandey

INTRODUCTION:

The media is considered one of the four pillars of democracy. And it plays an important role in shaping the opinion of society and has two ability to change the whole attitude through which people make their perceptions on various events.

It is able to change the mass mentality, through its approach. However, with the increase in the role of its Democratic Frontier, its professionalism needs attention and the report cannot be adequately emphasized. This is why we need to understand what media trial are.

The media trial describes the impact of the television and newspaper coverage on a person’s reputation by creation a broad perception of crime despite any decision in a court of law.

When a particular incident is evolved without any constitution, it is also disengaged in the air without any solid evidence and it is done in public form many times, it is called media trial.

Like nowadays we are sitting at home telling who the murderer of Sushant Singh Rajput is.

Media trial is very dangerous, but it can be understood by them only on whom media trial is held. The Supreme Court of India has on several occasion reprimanded the personal news donor or media outlets for running the sensationalism and not the news.

Learn more about Media Laws with Enhelion’s Online Law course certified by  Scriboard Advocates and Legal Consultants! 

MEDIA TRIAL:

  1. HISTORY OF MEDIA TRIAL:

Trial by the media is a phrase in the late 20th and early 21st centuries that describes the impact of television and newspaper on a person’s reputation by creating a broader perception of crime or innocence before or after a decision in a court of law.

Media Trial, although recently it was interpreted in the case of ROSCOE “FATTY” ARBUCKLE[1], who was acquitted by the court, but lost all his job after being declared guilty by the media.

Another well-known case was the O.J. SIMPSON[2], when the media has promoted the case and deeply influenced the minds of viewers even above the status of court. It is clear that media deeply encourages or influences public opinion.

Another famous case in the US was the trial of RODNEY KING’S[3] incident and the police officers involved later. Once again acquittal is challenged by the media with violent consequences. This makes the case particularly historically significant is the fact that it was amateur video footage that provided major evidence of alleged crime. As video cameras and their digital successors and CCTVs spread widely, caught on this type of camera.

It is often that coverage by the media can be said to reflect the views of a person who walks down the street. Hence, the media acts as a bridge between different individuals and audience. However, with media law coming under scrutiny even more, it has been recognized that media should publish facts about anyone through proofreading, citing credible sources. However, media has been used for both bad and good.

There is no legal system where the media is given power to try a case. In the case of media trials and journalism, in some cases the journalist breaks his reputation and portrays a pre-determined image of an accused that may eventually affect the trial and decision, so by the media trials.

In SUSHANT SINGH RAJPUT[4] case, Bombay High Court did not mince the words pointing to the fact that journalist have lost their neutrality today and the media has become polarized.

Learn more about Media Laws with Enhelion’s Online Law course certified by  Scriboard Advocates and Legal Consultants! 

  1. IMPACT OF MEDIAL TRIAL:

If there is a democracy, then the constitution recognizes that who is the legislature, who is the executive, and who is a judiciary, it is the pillar of democracy but apart from them there is another body which is not a constitutional body. If seen in India, media does not have a constitutional body. But it is considered as a pillar. If seen in constitution of India, Article 19 (1) (a), freedom of press has been recognized as a fundamental right because of its role as it is called fourth pillar of democracy.

The impact of media trial is that the media acts as a watchdog and brings us a platform where people are in a society of things can know about, it is important to know that this has led to favoritism against only one community or one person all over the world. Media trials have misrepresented the alleged accused and acted as a help to destroy their careers only by the fact that he was accused, even though he has not yet been convicted by a court of law.

 

CONSTITUTIONALITY OF TRIALS BY THE MEDIA:

  1. Media Trial vs. Freedom Of Speech and Expression
  2. Media Trial vs. Fair Trial
  3. MEDIA TRIAL vs. FREEDOM OF SPEECH AND EXPRESSION:

Freedom of Speech and Expression is something that works as a pillar inside democracy. Like there are many pillars inside democracy in which a pillar is also Freedom of Speech and Expression under which Freedom of Press also comes.

Freedom of Speech and Expression means keep your ideas, keep your points. In society, it can be in the form of a book. You can do it by writing, through sign, through the pictures, through audio or video, or through internet. There are many ways through which we can keep our points like movies or by news. Freedom of Speech and Expression has many important motives inside democracy. One motive is that a man feels only fulfillment, that is, we are living inside as an India that is we are living in our own thing looks good yes there is not so much pressure on us. We can speak our point. So a human feels a self-fulfillment. They feel that they can speak their own thing. They can keep their own point. How many people are listening and how many people are not listening but we can speak our words, we are not being pressed. Freedom of Speech and Expression plays an important role in the formation of public opinion on social, economic and political. Similarly, a person in power should be able to inform people about his policies and projects. Therefore, it can be said that freedom of speech and expression is the mother of all other liberties. Freedom of Speech and expression means the right to express one’s own convictions and opinions freely by words of mouth, writing, printing, pictures or any other mode. In modern time it is widely accepted that the right to freedom of speech is the essence of free society and it must be safeguarded at all time. The first principle of a free society is an untrammeled flow of words in an open forum. Liberty to express opinions and ideas without hindrance, and especially without fear of punishment plays significant role in the development of that particular society and ultimately for that state. It is one of the most important fundamental liberties guaranteed against state suppression or regulation. The fundamental right to freedom of speech and expression is regarded as one of the most basic elements of a healthy democracy for it allows its citizens to participate fully and effectively in the social and political process of the country.

Article 19(1) (a) of the Constitution of India guarantees to all its citizens the right to freedom of speech and expression. The law states that, “all citizens shall have the right to freedom of speech and expression”. And under Article 19(2) “reasonable restrictions can be imposed on the exercise of this right for certain purposes.

Any limitation on the exercise of the right under Article 19(1) (a) not falling within the four corners of Article 19(2) cannot be valid. The freedom of speech under Article 19(1)(a) includes the right to express one’s views and opinions at any issue through any medium, e.g. by words of mouth, writing, printing, picture, film, movie etc.  It thus, includes the freedom of communication and the right to propagate or publish opinion. But this right is subject to reasonable restrictions being imposed under Article 19(2).

 

Venkataramiah, J. of the Supreme Court of India in case

Indian Express Newspapers (Bombay) (P) Ltd. v. Union of India[5]

Has stated: “Freedom of press is the heart of social and political intercourse. The press has now assumed the role of the public educator making formal and non-formal education possible in a large scale particularly in the developing world, where television and other kinds of modern communication are not still available for all sections of society. The purpose of the press is to advance the public interest by publishing facts and opinions without which a democratic electorate Government cannot make responsible judgments. Newspapers being purveyors of news and views having a bearing on public administration very often carry material which would not be palatable to Governments and other authorities.”

Freedom of Press is not specifically mentioned in Article 19 (1) (a) of the constitution and only freedom of speech and expression is mentioned. In the constituent Assembly Debates it was cleared by Dr. Ambedkar, Chairman of the Drafting Committee, that there is no special mention of the freedom of press was necessary at all as the press and an individual or a citizen were the same as far as the right of expression was concerned.

 

In case of Romesh Thaper vs. State of Madras[6] and in the case of  Brij Bhushan vs. State of Delhi,[7]

The Supreme Court held that and took it into for granted the fact that the freedom of press was an essential part of the right to freedom of speech and expression. However, freedom speech and expression included propagation of ideas, and that freedom was ensured by the freedom of circulation.

In Printers (Mysore) Ltd. v. CTO [8]

The Supreme Court has reiterated that though freedom of the press is not expressly guaranteed as a fundamental right, it is implicit in the freedom of speech and expression. Freedom of the press has always been a cherished right in all democratic countries and the press has rightly been described as the fourth chamber of democracy.

In R. Rajagopal v. State of T.N[9]

The Supreme Court of India has held that freedom of the press extends to engaging in uninhabited debate about the involvement of public figures in public issues and events. But, as regards their private life, a proper balancing of freedom of the press as well as the right of privacy and maintained defamation has to be performed in terms of the democratic way of life laid down in the Constitution.

 

Prior to independence there was no constitutional or statutory guarantee of freedom of any person or media or press in India. Most common law can be claimed by the press as seen by the Privy Council by Channing and Arnold vs. King Emperor. Journalist’s Freedom there is a simple part of the freedom of the subject and whatever the length, in general the subject can go, so also became a journalists, but apart from law, his privilege is none other than law ad not more than that. His statement, the extent of his criticisms or his comments is equally wide, and not wider than any other subject. With object and ideas, the Preamble of the Indian Constitution ensures to all citizens inter alia, liberty of thought, expression, belief, faith and worship. The constitutional significance of the freedom of speech consists in the Preamble of Constitution and is transformed as fundamental and human right in Article 19(1) (a) as “freedom of speech and expression.

Learn more about Media Laws with Enhelion’s Online Law course certified by  Scriboard Advocates and Legal Consultants! 

  1. MEDIA TRIAL vs. FAIR TRIAL:

A trial that is seen by a trial judge without being partially seen is a fair trial. The various rights associated with fair trial are expressly declared in the sixth Amendment of the Constitution of the United States, Article 10 of the Universal Declaration of Human Rights and Article 6 of the European convention on Human Rights as well as many other constitution and declarations around the world has no binding international law that defines that there is no fair trial.  Fair Trial is an essential part of the United States judicial system that helps to prevent abortion of justice. The right to a fair trial is defined in many regional and international human rights instruments. It is one of the most widespread human rights and all international human rights instruments vest it in more than one Article. The right to a fair trial is one of the most litigated human rights and substantial case law founded on the interpretation of this human right. The purpose of authority is to ensure proper administration of justice. Civil and Criminal proceeding as a right to minimum trial include the following fair trial rights.

  • the right to be heard by a competent, independent and impartial tribunal
  • the right to a public hearing
  • the right to be heard within a reasonable time
  • the right to interpretation

The right to a fair trial which is unaffected by external pressures is accepted as the basic

Principle of justice in India. Legal provisions for the purpose of acquiring the said rights are   contained under 1971 and under Articles 129 and 215 of the Indian Constitution.

 

In case of Shalab Kumar Gupta and Ors. v. B.K. Sen and Anr.[10]

It was held by the Supreme court that, there is no doubt that it would be mischievous for a newspaper to systematically investigates a crime for which a man has been arrested and to publish the results of that investigation. This is because the trial by newspaper

S, when the trial is underway by one of the country’s regular tribunals, should be stopped. The basis of this view is that such action on behalf of a newspaper interferes with the course of justice whether the investigation prejudices the accused or the prosecution. There is no comparison between a newspaper trial and what has happened in this case.

 

In case of Manu Sharma v. State (NCT of Delhi)[11]

the court held that despite the significance of the print and electronic media in the present day, it is not only desirable but the least that is expected of the persons at the helm of affairs in the field, to ensure that trial by media does not hamper fair investigation by the investigating agency and more importantly does not prejudice the right of defense of the accused in any manner whatsoever. It will amount to travesty of justice if either of this causes impediments in the accepted judicious and fair investigation and trial.

 

In case of Dr. Shashi Tharoor v. Arnab Goswami and Anr.[12]

The court held that it is the function and right of the media to gather and convey information to the public and to comment on the administration of justice, including cases before, during and after trial, without violating the presumption of innocence. In fact, presumption of innocence and a fair trial are at the heart of criminal jurisprudence and in way important facets of a democratic polity that is governed by rule of law. Journalists are free to investigate but they cannot pronounce anyone guilty and/or pre judge the issue and/or prejudice the trial. The grant of the fairest of the opportunity to the accused to prove his innocence is the object of every fair trial. Conducting a fair trial is beneficial both to the accused as well as to the society. A conviction resulting from unfair trial is contrary to the concept of justice.

MEDIA TRIAL POSITION IN USA:

Several US Supreme Court decisions confirm the potentially dangerous impact that media testing can have.

In the case of Billie Sol Estes,[13]

The US Supreme Court set aside a Texas financier’s sentence for denying his constitutional rights to due process of law, as did extensive and unpleasant television coverage during pre-trial hearings. The court set a rule that the transmission of notorious criminal trials is actually prohibited by the “Procedure of Law “section of Amendment Fourteen.

[1] 1921

[2] 1995

[3] Rodney king case

 

[4] 2020

[5] (1985) 1 SCC 641

 

[6] AIR 1950 SC 124

[7] AIR1950 SC 129, 1950 SCR 605

[8] 1994 SCR (1) 682

[9] 1995 AIR 264

[10]1961 AIR 633

[11] 19 April 2010

[12] 1 December 2017

[13] 1965

 

Learn more about Media Laws with Enhelion’s Online Law course certified by  Scriboard Advocates and Legal Consultants! 

Categories
Blog

Role of Consumer Protection Law in Medical Negligence cases

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.

Learn more about Medical Negligence with Enhelion’s Online Law course certified by Sukrith Legal!

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.

Learn more about Medical Negligence with Enhelion’s Online Law course certified by Sukrith Legal!

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]

Learn more about Medical Negligence with Enhelion’s Online Law course certified by Sukrith Legal!

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

 

Learn more about Medical Negligence with Enhelion’s Online Law course certified by Sukrith Legal!

Categories
Blog

Role Of Intellectual Property Law In The Sports Industry

By: Pallavi Tiwari

  1. 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]

Learn more about Sports Law with Enhelion’s Online Law course certified by Scriboard Advocates and Legal Consultants! 

  1. 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.

  1. 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]

Learn more about Sports Law with Enhelion’s Online Law course certified by Scriboard Advocates and Legal Consultants!

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.

  1. 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.

  1. 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.

  1. 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]

Learn more about Sports Law with Enhelion’s Online Law course certified by Scriboard Advocates and Legal Consultants!

  1. 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.

Learn more about Sports Law with Enhelion’s Online Law course certified by Scriboard Advocates and Legal Consultants!

Categories
Blog

Impact of Covid-19 on the Aviation Industry

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.

Learn more about Aviation Law with Enhelion’s Law Firm certified course! 

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.

Learn more about Aviation Law with Enhelion’s Law Firm certified course! 

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.”

Learn more about Aviation Law with Enhelion’s Law Firm certified course! 

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.

Learn more about Aviation Law with Enhelion’s Law Firm certified course! 

Categories
Blog

Analysis of Competition Law Issues in the Facebook-Jio Deal

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 21st 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.

Learn more about Competition Law with Enhelion’s Law Firm certified Diploma course! 

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.

Learn more about Competition Law with Enhelion’s Law Firm certified Diploma course! 

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.

Learn more about Competition Law with Enhelion’s Law Firm certified Diploma course! 

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.

Categories
Blog

Comparative Study of Laws relating to Corporate Governance in USA, UAE and UK

By: Parul Sagar

  • What is Corporate Law?

Corporate law is the array of laws, rules, rules, and practices that manage the course of action and action of organizations. It’s the gathering of law that guides legitimate components that exist to lead business. The laws address the rights and responsibilities of the aggregate of people related with molding, having, working, and managing an endeavor.

  • Corporate governance –

Corporate administration is the blend of rules, cycles or laws by which organizations are worked, directed or controlled. The term incorporates the inside and outer variables that influence the interests of an organization’s partners, including investors, clients, providers, government controllers and the board

  • UNITED ARAB EMIRATES

In January 2020, new guidelines came into the image by the name of Organizations Guidelines, 2020. These were delivered by DMCC (Dubai Multi Items Center) and Legislature of Dubai. These standards have been given for the solace and adaptability of the current organizations just as the organizations to be set up later on in the deregulation zone. These are the corporate consistence rules gave by the experts in Dubai.

  • UNITED STATES OF AMERICA

The US of America directs enterprises on three distinct levels, neighbourhood, state, and government. While neighbourhood and state fluctuate, the government corporate consistence laws are a bunch of cover laws to be followed as essential compliances. What’s more, the nearby, just as the state laws, apply. These base principles by the government are illustrated in the Protections Demonstration of 1993 and the Protections and Trade Demonstration of 1934. The US Constitution permits a partnership to set up in any state and not with respect to where the settle of the organization is arranged.

Learn more about Corporate Governance with Enhelion’s Law Firm certified course! 

  • UK Corporate Governance

It expressed that various guidelines, suggestions and rules structure the guideline of corporate administration inside the UK, for example, custom-based law rules, for example, trustee obligations of chiefs, protected reports of an organization including notice and articles of affiliation, sculpture explicitly Organizations Act 1985, the posting rules applying to all organizations recorded on the Point Rules or Authority Rundown, the Consolidated Code on

Corporate Administration; however, the Code’s arrangements are not fundamental, yet it is obligatory

for the recorded organizations to give their yearly report an announcement displaying consistence with the Code and give reasons if not agreeing. Keasey, Thompson and Wright (2005) found that the Code is joined by the Smith Direction alluding review boards and evaluators; the Turnbull Direction identified with

Code’s inner control necessity and the Higgs Audit and proposed proposals of good practices. Besides, non-legitimate rules appropriated by bodies speaking to institutional financial specialists, for example, ABI PIRC (the Benefits and Venture Exploration Experts and NAPF are basic. All the recorded organizations will undoubtedly follow these rules. Likewise, in the event of public organizations’ takeovers, Mergers and the guidelines of the Takeover alongside the City Code on Takeovers are relevant. Also, Code of Market Direct of Budgetary Administrations Authority is significant as it identifies with the data exposure, which is profoundly delicate and secret and on the off chance that it isn’t followed, it may prompt make a bogus market.

  • ANALYSIS

The business laws of the USA and UAE vary on numerous grounds. Starting with the language of the agreements, in the USA, the English language works fine when agreements are considered. In any case, in the UAE, any agreement which is in the English language must be deciphered in Arabic also. In a circumstance where a debate emerges, the content written in Arabic is treated over the English language text. This may make an issue for English talking partnerships.

In the USA, enterprises are represented at different levels, i.e., government law, state law, and the nearby law. Then again, in the UAE, an individual body chooses the guidelines and all the companies need to hold fast to it. In the USA, cover rules are given to be clung to and further the state applies the relatable principles alongside the organizations which fuse rules into their by-laws. With the end goal of tax collection, each level forces its own assessment which the company needs to pay. State laws are distinctive in each of the 50 states. This expands the multifaceted nature of the cycle of business. The partnership is limited by first the government rules, at that point the state rules, lastly the neighborhood rules. UAE has a uniform framework. The administration alongside specific organizations chooses the guidelines for all the organizations and there is no middle level. Both for the terrain organizations too the ones in streamlined commerce zones, there is just one level at which the guidelines are set down just as the duty strategy is taken.

In UAE, the business and the part of the business are treated as independent substances and the income created from the branch is considered as the income of the branch itself, though, in the USA, the branch is treated as a piece of the business and not a unit of the business. Henceforth, the assessment to be charged on that specific branch is charged on that of the entire business.

The basic rules of the UAE give restricted obligation to the investors of the organization as the business and the investors are viewed as independent substances. USA gives a choice to the proprietors of the partnership to either get burdened independently on the business and the investor’s pay similarly as UAE or the other alternative is get the business income likewise burdened as the proprietor’s very own pay. Nonetheless, for the subsequent choice, certain conditions are to meet.

Learn more about Corporate Governance with Enhelion’s Law Firm certified course! 

The two nations have no base capital prerequisites. Yet, UAE, may in specific exercises set out a base capital of AED 50,000.

Decisively, the correlation of corporate administration practices and laws of the UK and the U.S. are comparable or there is an identical norm. In any case, for organizations and their in-house guiding, the changing essence of the authoritative scene of the two nations advances numerous difficulties. Truth be told, after the disastrous budgetary emergency of 2008 and 2009, the laws request completely recorded organizations to hold fast to code of morals and related laws and guidelines. Taking everything into account, it has been reliable with the Sarbanes-Oxley Act and 2004 Act; be that as it may, for non-U.S. firms, SEC has been exceptionally obliging giving them an open door through exclusions to cultivate their organizations as they may confront clashing difficulties in view of neighborhood laws. In the U.S., SOX assume a significant part for successful corporate administration while in the UK, Demonstration 2004, Smith Direction and different laws cooperate to straightforward monetary detailing

Learn more about Corporate Governance with Enhelion’s Law Firm certified course! 

Categories
Blog

Star India Private Limited v. Leo Burnett

– 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.

To learn more about Cyber Law in India, stay connected to our blog or head on to our Law Firm Certified Courses and learn from leading law firms in India. [Click Here]

Categories
Blog

Compulsory Licensing of Patents

– 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:

  1. The person or company should apply for licensing after 3 years to the grant of patent.
  2. Before applying for compulsory licensing, the person or company should make an attempt for voluntary licensing.
  3. 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.

To learn more about Cyber Law in India, stay connected to our blog or head on to our Law Firm Certified Courses and learn from leading law firms in India. [Click Here]

 

 

Categories
Blog

Case study on Bayer Corporation v. Union Of India

– By Apoorva Mishra

FACTS

  • The writ petitioner in the case was Bayer Corporation. The second respondent in the case was the DCGI and the third respondent was Cipla.
  • The Indian Patent Office had granted the petitioner, patent number 215758 on 3 March 2008. Therefore, by virtue of Section 48 (rights of a patentee) of the Patents Act, Bayer got the exclusive right to prevent third parties, from the acts of making, using, offering for sale, selling or importing the patented product in India, without its consent.
  • Cipla then introduced a drug “Soranib” which was a substitute of its patented drug. Subsequently, on 31st July 2008 Bayer wrote to the DCGI requesting that marketing approval be not granted to Cipla for its drug “Soranib” as Bayer had the exclusive right to market the drug.
  • It urged the DCGI to reject the representation of Cipla for grant of marketing approval for spurious adaptation of its patented drug “Sorafenib Tosylate”, as the same would contravene DCA.
  • Also, Bayer wrote to Cipla asking it to confirm whether it had filed an application before DCGI for grant of marketing approval for a drug covering “sorafenib tosylate” but received no reply.
  • Bayer filed the petition seeking directions to, inter alia, restrain grant of drug license in regard to an application by the third respondent for the license to manufacture, sell and distribute its drug ‘Soranib’. The petitioner claimed that the said drug was an imitation of, or substitute for, its patented drug.

ARGUMENTS BY BAYER

  • The Petitioner contends that in the absence of an overriding provision in the Drugs Act, reinforces the intention of the legislature that its provisions of the Drugs Act are to be read in addition to the Patent laws and not to the contrary. Therefore, Section 2 of the Drugs Act have to be read in conformity with the Section 48 of the Patents Act which establishes a concept of “Patent Linkage” which imposes a burden on the Drug Controller to make sure that any of his decisions of granting market approval for a drug do not violate any law for the time being in force.

 

  • The petitioner relies on Section 18 and Form 44 of the Drugs Act, which talks about mentioning of patent status of the drug. While making an application before the Drug Controller, CIPLA ought to have mentioned the subject Patent of Bayer. Therefore, by a mere reading of Form 44, and also by virtue of publication of grant of the subject patent, it would be well within the knowledge of the Drug Controller that the subject patent exists in relation to the product for which CIPLA has applied for consequently, if the marketing approval is granted, it will contravene the provisions of Section 17B of the Drugs Act, as well as the provisions of Section 48 of the Patent Act.
  • The petitioner contends that the application of Cipla is for the license to manufacture, sell and distribute its drug “Soranib” which is an imitation of the Petitioners’ patented drug. The drug “Soranib”, being “spurious drug” as defined in Section 17B of the Drugs Act, the DCGI would not only be exceeding his jurisdiction but also give a decision which would be ultra vires Chapter IV of the Drugs Act.

ARGUMENTS BY CIPLA

  • Cipla contends that Bayer’s claim for patent linkage, based on an interpretation of Section 2 of the Drugs Act is misleading, because the grant of drug regulatory approval by the DCGI cannot, by itself amount to a patent infringement.
  • The existence of patent infringement cannot be assumed merely because the patentee states so, but has to be clearly established before a court of law in accordance with the infringement provisions mentioned under the Patents Act, 1970. Such an assessment is beyond the statutory powers of the DCGI, which is institutionally incapable of dealing with complex issues of patent scope, validity and infringement.
  • Cipla states that Section 107A of the Patents Act, clearly exempts from patent infringement any of acts of making, using or even selling a patented invention, in so far as such acts are necessary to obtain information for the filing of a drug regulatory application before the DCGI.
  • Cipla relied on the concept of “Bolar Provision” under Section 107A of the Patents Act which permits any drug manufacturer to experiment with any patented drug and is aimed at speeding up generic entry into the market and the availability of low cost drugs to the consumer.
  • Cipla states that Section 19 of the Patents Act provides limited powers to the Controller. It may at its best only direct that a reference to the earlier patent be inserted but does not authorise the controller to deny the grant of the patent itself to the applicant. Hence, DCGI cannot assess the possibility of patent infringement and dent drug regulatory approval on such grounds.
  • Cipla argued that the terms ‘limitation’ and ‘substitute’ in Section 17 B (b) cannot be read in isolation to the remainder of the sub-clause. The words ‘substitute for’ were to be read along with ‘in a manner likely to deceive’. The text of the said sub clause reveals that the same covers a situation where an individual is passing off his drug as that of another by way of using deceptive marks get-up or packaging and this did not include patents.

 

ISSUES RAISED

(1) Whether a combined reading of the Drugs Act and the Patents Act lead to the conclusion that no marketing approval can be granted to applicants for drugs or formulations, of which others are patent owners, by reason of Section 2 of the Drugs Act, read with Sections 48 and 156 of the Patents Act?

(2) Whether drugs or formulations which infringe patents are “spurious drugs” under the Drugs Act?

APPLICATION AND ANALYSIS

ISSUE 1 : Whether a combined reading of the Drugs Act and the Patents Act lead to the conclusion that no marketing approval can be granted to applicants for drugs or formulations, of which others are patent owners, by reason of Section 2 of the Drugs Act, read with Sections 48 and 156 of the Patents Act?

What is Patent Linkage?

Patent linkage is the practice of linking drug marketing approval to the patent status of the originator’s product and not allowing the grant of marketing approval to any third party prior to the expiration of the patent term, unless consented to by the patent owner. This creates a duty in favour of the Drugs Controller to ensure that marketing approval is not granted to generic manufacturers in cases where the drug is already covered by an existing patent.

Difference between the objectives of the Statutes

The Drugs Act is a public regulatory measure, prescribing standards of safety and good manufacture practices which are to be followed by every pharmaceutical industry, or which are to be satisfied by the importer of a drug, to assure that what are marketed are safe. The provisions of the Act manifest Parliamentary concern with public health in ensuring standard practices, and that people do not fall prey to adulterated or spurious drugs. There is a general public policy interest in such regulation.[1]

The Patents Act on the other hand, puts in place a regime containing standards for conferring private monopoly rights in favour of inventors. It requires that processes or products, to claim patents, should involve steps that are “technical advance as compared to the existing knowledge or having economic significance or which has not been anticipated by publication in any document or used in the country or elsewhere in the world before the date of filing of the patent application.

Authority of the DCGI

The Controller of Patents and other officers are experts at judging whether claimed products or processes are patentable. This expertise is not only in respect of pharmaceutical products, but other specialized areas as well.

This expertise depends upon adjudging, on an objective basis, whether a product or process is novel, or contains an inventive step. Such expertise does not necessarily exist in the case of officials under the Drugs Act, who are required to test the safety of the product, and ensure that it conforms to the therapeutic claim put forward. Whether it involves an inventive step, or is novel, is not within the domain of the Drugs Act authorities and officials.

The existence of patent linkage standards in express legislation, in other parts of the world underscores that courts, in the absence of a Parliament mandated regime, should not blaze into an obviously legislative path. No doubt, courts can, through interpretive devices such as purposive interpretation, or for avoiding absurd results, at times “fill in” statutory gaps.[2]

Bayer relies on Section 2 of the Drugs Act and Section 156 (of the Patents Act) to contend that statutory intention is clear that Drugs authorities are bound by patents, granted under the Patent Act, by virtue of Section 156 and therefore, they cannot, by conferring drug or marketing approval permit violation of patents validly granted. However, Section 156 is a clarification, that the Government, and its officials, as grantors, are bound by the patents. This means that they have to respect patents, and cannot infringe them.

Patent Linkage in Grant of Market Authorisation

One of the important reasons to inferring Drug agencies role in patent policing or enforcement is unacceptable, is that some developed countries, and the European Union cautioned against patent linkages. [3]

The EU Directorate General for Competition noted that “Patent linkage refers to the practice of linking the granting of MA (market authorization), the pricing and reimbursement status or any regulatory approval for a generic medicinal product, to the status of a patent (application) for the originator reference product. Under EU law, it is not allowed to link marketing authorisation to the patent status of the originator reference product. Since the status of a patent (application) is not included in the grounds set out in the Regulation and in the Directive, it cannot be used as an argument for refusing, suspending or revoking Marketing approval (MA).[4]

The court also rejected the Bayer’s argument that Rule 122 B(1) (b) of the Drugs Rules, read with Form 44 and the data required (Appendix 1 to Schedule Y), gave an insight that patent linkage is intended by Parliament. The court stated a known principle of statutory construction, which said that the Parliament or the concerned legislature is deemed to be aware of existing laws when it enacts new legislative measures.[5]

Therefore, there is no patent linkage in the country and what the Petitioner wants to do is to legislate it through the interpretations, which is impermissible. The court should avoid from making any policy choices which are to be made by executive and then made by the law. The concept of patent linkage is controversial in nature, since:

(1) It clothes regulatory authorities, which are executive bodies solely concerned with scientific quality, efficacy and safety issues, with completely new powers, and into areas lack in expertise, i.e. patent rights policing.

(2) It transforms patent rights which are private property rights, that depend on the owners’ promptitude and desire to enforce them, into public rights, whose enforcement is dependent on statutory authorities, who are publicly funded.

(3) Such linkage potentially undermines the “Bolar/Early Working” exception that encourage quick access to the post patent markets for generic medicines. This is a major public policy consideration in India, which faces a host of public health challenges.

The Hon’ble High Court rightly decreed the issue in favour of the Respondents, because Whenever there is a complaint on infringement it has to be challenged before the Intellectual Property Board and suits in the High Court. Before each such body, the patentee has to establish and prove infringement, wherever alleged, and may, in some cases, face challenges to the grant of its patent. Such crucial provisions, conceived in public interest, would be rendered a dead letter, if the Drugs authorities, on a representation of the patentee were to refuse licenses or approval, to applicants who otherwise satisfy the requirement of the Drugs Act and its provisions, or even be precluded from examining such applications, on assumed infringement. Also, under the Patents Act, infringement of a patent is not considered a criminal offence. On the other hand, under the Drugs Act, violation of any of its provisions constitutes a criminal offence. If patent linkage is directed, an act of infringement which is not an offence would indirectly be alleged to be an offence.

 

ISSUE 2: Whether drugs or formulations which infringe patents are “spurious drugs” under the Drugs Act?

Section 17-B of the Drugs Act defines spurious drugs as follows:

(a) if it is manufactured under a name which belongs to another drug; or

(b) if it is an imitation of, or is a substitute for, another drug or resembles another drug in a manner likely to deceive or bears upon it or upon its label or container the name of another drug unless it is plainly and conspicuously marked so as to reveal its true character and its lack of identity with such other drug; or

(c) if the label or container bears the name of an individual or company purporting to be the manufacturer of the drug, which individual or company is fictitious or does not exist; or

(d) if it has been substituted wholly or in part by another drug or substance; or

(e) if it purports to be the product of a manufacturer of whom it is not truly a product.

Bayer states that Cipla’s generic version of Sorafanib, which, it is contended, is sold under the brand name “Soranib” would amount to a “spurious drug”. If Bayer’s contention were to prevail, every generic drug would ipso facto amount to a “spurious drug”, since they are deemed substitutes of originator (patented) drugs. Such interpretation is facially untenable and contrary to the intent of the Drugs Act. The key elements of “spuriousness” are deception, in the manner of presentation of the drug concerned, in the sense that they imitate or represent themselves to be something that they are not.

The definition of “spurious drugs’ was introduced because of the problems of adulteration of drugs and production of spurious and sub-standard drugs, as posing a serious threat to the health of the community. A declaration by the drug agency entrusted with the task of deciding applications seeking marketing approval that someone not holding a patent is attempting to get clearance for a “spurious drug” would be pre-emptive, and would negate the provisions requiring that enforcers should follow certain mandatory procedures, and prosecute potential offenders.

When a pharmaceutical company first markets a drug, it is usually under a patent that allows only the pharmaceutical company that developed the drug to sell it. Generic drugs can only be legally produced for drugs which are free of patent protection. After the patent on a drug expires, any pharmaceutical company can manufacture and sell that drug for a fraction of the original cost of testing and developing that particular drug; in essence, says Bayer, this is a “generic” product.

 

Therefore it was rightly held by the court in favour of CIPLA because if Bayer’s contentions were accepted then every drug would be considered as spurious drug and generic drugs are nothing but the substitutes of patented drug, whereas the key element of determining the spurious drug is deception, in a manner, that they imitated themselves as something which they were not.

CONCLUSION

The court rightly dismissed the writ petition and pronounced the judgement in favour of the Respondents. Patent Linkage forces the regulatory authorities to perform a function which is completely in different domain altogether leading to changing the nature of patent right from a private right to a public right. If at all, patent linkage has to be adopted it should make sure that it does not come in the way of Compulsory Licensing. Even though such measures are good for the benefit of investing into Research and Development, but it still discourages generic competition in the market, leading to large monopoly of pharmaceutical company due to which the accessibility of the drug is difficult and if at all the drug is made available, it is at a very higher price which is unaffordable almost by the majority section of the people. Hence, whenever there is a need and it is in the benefit of public, market approval should be granted so that the drug can cater to the public, if the situation demands then, the generic drug manufacturer can be asked to pay royalty to the patent holder. This will also discourage monopoly of foreign pharmaceutical companies in the Indian market leading to rise in Indian economy as well.

 

[1] Robert  Galantucci,  Data  Protection  in  a  US-Malaysia free trade  agreement:  New  barriers  to  market  access  for generic  drug  manufacturers, Fordham  Intellectual  Property,  Media and Entertainment Law Journal, 17 (2007), 1083.

[2] Orange Book: Approved Drug Products with Therapeutic Equivalence Evaluations, Available at: http://www.accessdata.fda.gov/scripts/cder/ob/default.cfm

 

[3] European  Generic  Medicines  Association,  New  strategy  on patent  linkage  is  contrary  to  EU  law  and  threatens access  to competitive generic medicines, 2 February 2006, http://www.egagenerics.com/pr-2006-02-02.htm

[4] European  Union  –  DG  Competition,  Pharmaceutical  Sector Enquiry:     Preliminary     Report,     28    November     2008,  http://ec.europa.eu/competition/sectors/pharmaceuticals/inquiry/preliminary_report.pdf

[5] Syndicate Bank v  Prabha D Naik AIR 2001 SC 1968.

 

To learn more about IP Law in India, stay connected to our blog or head on to our Law Firm Certified Courses and learn from leading law firms in India. [Click Here] 

Categories
Blog

Case study on Star India Private Limited V. Leo Burnett

– 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.

To learn more about IP Law in India, stay connected to our blog or head on to our Law Firm Certified Courses and learn from leading law firms in India. [Click Here]