Idea faces contempt case on Supreme Court's 3G pact order | Business Standard

Idea faces contempt case on Supreme Court's 3G pact order | Business Standard

Marks & Spencer’s use of AdWords is trade mark infringement

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Dowry Death and Indian Families

In today’s Indian society dowry is like a norm, we see that people spend lavishly on marriages. The root cause of the problem starts from here, The parents of the bride fulfill all the wishes of groom’s family like spending lavishly on wedding, gifting cars etc. when the bride reaches her matrimonial home, The selfishness of groom’s family grows .Now they demand more things like household items, property etc. Not in the condition to fulfill the infinite demands of groom family, The Groom family starts to harass the newly wedded wife so much and so grave that she thinks it’s better to end the life than to live it. In the end the lavishly solemnized wedding ends into tragic death of the bride. The cause of death is not natural that is for sure, it may be due to poison, suicide, even hanging on the ceiling, burns.

 

This the most common story of all the dowry related deaths .For this common story there must be a common Law on different footing as that of murder and culpable homicide as the cases of murder and culpable homicide demands much greater evidence and are much complicated. The dowry death is covered in sec 304 B IPC which is:

 

(1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called" dowry death", and such husband or relative shall be deemed to have caused her death. Explanation.- For the purposes of this sub- section," dowry" shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).

 

(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.

 

Basic Ingredients:

 

1. There must be a death of the woman.

2. The death of the woman must be in un natural circumstances.

3. And there must be evidence that she was subjected to cruelty due to demand of dowry.

 

So there is a stark difference between section 299/300 and 304B as 299/300 has much wider scope and covers many motives, But sec 304B the main motive is Dowry due to which cruelty and harassment is performed on the bride and due to which she died.

 

Evidence in 304 B-

 

For the protection of harassed party the evidence act comes to rescue for a crime to come under the 4 corners of evidence act, The material evidence is cruelty and harassment on the bride.

 

113B. Presumption as to dowry death.- When the question is whether a person has committed the dowry death of a women and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry; the court shall presume that such person had caused the dowry death.

 

Now due to this section the burden of proof shifts to defendants, now they have to show that they have not done cruelty and harassment in order to evade this section.

 

Unlike in murder cases there is always presumption of innocence, The section of murder has to pass through quite stringent tests than that of dowry death. In dowry related death those people who are involved in cruelty (relatives) are held to be liable for the dowry death.

Source: Nitish Banka

Hindu Daughter's equal rights in ancestral - coparcenory property

Since this is an area of profound concern these days, and I’ve been facing endless queries on this, here is a basic & overly simplistic layman’s view on the law as it was before 2005 and after it vis-a-vis daughter’s right in joint family/coparcenary/ancestral properties among Hindus in India.  

 

Concept of Joint Family in a nutshell

 

We all are aware of the concept of a Joint Family – wherein people related by blood/marriage descending from a common ancestor form a unit, live, work, worship together. This includes all sorts of people, sons/daughters (married, widowed or otherwise), mother, widows of sons etc. All these people have right to maintenance out of joint family properties and assets. 

 

The Coparcenary

 

Within this group there is a narrower group called the coparcenaory, with it’s constituents being referred to as the coparcenars have birth rights (ownership) in the joint family/ancestral properties, which they can get culled out anytime by a partition, they have the right to sell/gift/will away their share of the property, they also have the power to assail any wrongful transfer of property made by Karta (Karta, for those who arrived late is the eldest lineal member of the family, entrusted with task of managing the property, Karta has the power to even alienate the whole of property in certain circumstantial compulsions). 

 

BEFORE 2005

 

Now before 2005 only son, son’s son, son’s son’s son were coparcenars, with the daughters only having a right to reside in the property and get their marriage expenses defrayed out of the same. A son would acquire proportionate ownership in the property moment of it’s conception, but not the girls.

 

POST 2005

 

Post 2005 – now a daughter also would acquire ownership rights on the property from the time of her conception (provided of course she is born alive). She has the same rights of partition and power to deal with the property as she pleases, this right extends to seeking a partition and sale of the family home as well. Hence there is a complete parity in terms of rights.  However it would be profitable to remind ourselves that these rights extend to only ancestral properties (or joint family properties – are properties which people inherit from their paternal ancestors/property through into common hotch potch/property acquired by joint family efforts/accretions etc) and not separate properties (which include property earned by gift/will/acquired through purchase from own funds/acquisitions from own skill etc.) 

 

But there is a rider - The right to get your equivalent share of the property can be exercised only in cases where there has been no formal partition (partition either through court final decree or through a registered partition deed) before 20.12.2004. In case a partition has already been finalized before the said date, the right collapses. 

 

HOW TO ASSERT YOUR RIGHT ? FILING A SUIT FOR PARTITION  

 

The Daughters (married, widowed or unmarried) now can approach the civil court for seeking a partition from their brothers/family/father etc. Their right is equal. Once acquired a lady is free to deal with the property the way she likes and it becomes her absolute property and her children have no right during her lifetime. 

 

A Daughter can file a suit for partition, on which certain court fees is payable. This court fee depends on the value of her share in the property and has to be calculated as per court fee chart. 

Lawyersclub

Compensation under SARFAESI Act

1. The Hon’ble Supreme Court in the landmark judgment in ‘Mardia Chemicals’ case, while upholding the constitutional validity of Securitization, Reconstruction of Financial Assets & Enforcement of Security Interest Act 2002 (for brevity the Act) had held that secured creditor has to take higher degree of caution in exercising any of the rights under the Act in view of stringent nature of the provisions of the Act. The Action taken should be bona fide and transparent. Sec.32 of the Act provides for immunity to secured creditor or any of its officers against prosecution or other legal proceedings for bona fide action taken by him under the Act.  Bona fide action means action taken in good faith and in consonance to the provisions of the Act and Security Interest (Enforcement) Rules 2002 (for brevity “the Rules”) framed thereunder. However any negligent or fraudulent act of secured creditor cannot be said to be bona fide act and therefore is not covered by Sec.32 of the Act.

 

2. Sec.32 of the Act reads thus:  “No suit, prosecution or other legal proceedings shall lie against any secured creditor or any of his officers or manager exercising any of the rights of the secured creditor or borrower for anything done or omitted to be done in good faith under this Act”.

 

3. An authority clothed with statutory power cannot seek excuse for negligent acts as the borrower may suffer irreparable loss which cannot be compensated even in terms of money. Where something has gone seriously wrong, it is both inconvenience and distress. Distress includes embarrassment, anxiety, disappointment and loss of expectation. The degree of distress involved can vary widely which can be little more than a relatively minor annoyance. Distress and inconvenience often go hand in hand. Inconvenience includes incurring of any unwarranted expenditure of time and money to protect against wrongful action. Pain and suffering are considered as more extreme forms of distress and inconvenience. Compensation is meant to make good the loss by awarding damages to the party who suffered distress in an illegal action. These damages are meant specifically to compensate a person against negligent action or a deliberate act, of a statutory duty.

 

4. For that reason, Sec.19 is embodied in the Act as a safe guard against such harsh and unsavoury action. Perhaps for this reason, the Hon’ble Supreme Court in ‘Mardia Chemicals’ case also observed that there is no need for framing another law for fixing “Lender’s liability”. Sec.19 of the Act is extracted and reproduced hereunder:

 

“19. Right of borrower to receive compensation and costs in certain cases: If the Debts Recovery Tribunal or the Court of District Judge, on an application made under section 17 or section 17A or the Appellate Tribunal or the High Court on an appeal preferred under section 18 or section 18A, holds that the possession of secured assets by the secured creditor is not in accordance with the provisions of this Act and rules made thereunder and directs the secured creditors to return such secured assets to the concerned borrowers, such borrower shall be entitled to the payment of such compensation and costs as may be determined by such Tribunal or Court of District Judge or Appellate Tribunal or the High Court referred to in section 18B.”

 

5.  Sec.19 creates a statutory right in favour of borrower to receive compensation provided the following two conditions are fulfilled:

 

i). if DRT/Dist.Court/DRAT/High Court under Secs.17/17A/18/18A  holds that possession of secured assets by the secured creditor is not in accordance with the provisions of the Act and the Rules made thereunder and

 

ii). directs the secured creditor to return the secured assets to the concerned borrowers.

 

6. The theory of damages is that a compensation is given in satisfaction for the injury sustained, in terms of money for reparation of the damages suffered which one would not have sustained but for the wrong done by the other party.Section 73 of the Contract Act is the general law governing all cases, resulting in loss or damage to the party who suffered damages.

 

7. The expression ‘compensation’ is not ordinarily used as an equivalent to damages, although compensation may often have to be measured by the same rule for breach of a contract. The word ‘Compensation’ is usually used interalia with ‘damages’, however the word ‘Compensation’ denotes a sum of money payable to a person on account of the loss or damage caused to him by the breach of a statutory duty. The damages on the other hand, mean the estimate of some loss and injury actually sustained. The expression ‘compensation’ is not ordinarily used as an equivalent to damages, although compensation may often have to be measured, by the same rule as damages are measured in action for a breach of contract.

 

8. The compensation is given only when actual loss or injury is suffered by the Claimant. The fundamental principle of law of damages is that the person injured shall have fair and just compensation commensurate with loss sustained in consequence of anything done wrong. “Punitive or exemplary damages” also can be awarded by DRT where a respondent acted in a reckless or violent manner.

 

9. Entitlement of compensation and costs may be decided by DRT/Dist.Court/DRAT/High Court under Secs.17/17A/18/18A. This Section does not impose any mandatory duty to DRT to award compensation in each and every case. This is obvious from the word “may” appearing in the language of the section. Therefore it is advisable that, borrower seeks for this relief specifically and invariably in the Sec.17 application itself and produce evidence or rely on evidence to prove the damages suffered. There is no need to file any separate application under Sec.19 of the Act. It is settled law that if no relief is claimed, the authority has no power to grant relief.

 

10.  Sec.19 of the Act is ambiguous as to whether this right is available to aggrieved person (eg. third party or bona fide tenant) also or not. In many cases third parties also face crucial position at the time of forceful / physical dispossession under Sec.14 of the Act. Of course the aggrieved persons are entitled to costs of the application under Sec.17 of the Act but entitlement to compensation is not obvious from the reading of the Section. DRT has no power as it cannot supplement law in this regard as a legislator (casus omissus= When a statute or an instrument of writing undertakes to foresee and to provide for certain contingencies, and through mistake, or some other cause, a case remains to be provided for, it is said to be a casus omissus)

Source: Lawyersclub

Agarwal and Company Law Offices LLP.: Legal Attorney Advice - Points to Remember

Agarwal and Company Law Offices LLP.: Legal Attorney Advice - Points to Remember

Legal Attorney Advice - Points to Remember

Dealing with lawyers can be quite the headache when you yourself have never done it before. Sometimes, you may not even determine what they’re saying. However, if you use the methods you may discover ways to efficiently keep in touch with your lawyer. 

Research your lawyer completely. Carefully have a look at their training and work experience. Make sure special attention is paid by you to how they manage your practice. If they struggle managing their practice, then that is a sure sign that they’ll probably struggle handling your case.

Locating a good lawyer is a lot of work. Some time should be put by you apart to do some research and give your self a few weeks to compare different choices. Meet different attorneys to have estimates and request advice. You shouldn’t expect you’ll look for a quality lawyer straight away.

You’ve worked with in the past if you need legal help, don’t always use the lawyer. You may need a certain type of attorney, somebody who specializes in the type of case you are associated with. Do not worry, though. A specialist is not fundamentally high priced, so you should really be able to manage what you need.

Remember, a good lawyer works hard on your case. If they’re working with multiple clients, but they should give you regular changes, speak to you often and continue to have your absolute best interests at heart no real matter what.

You do not want an arrogant attorney, you want a confident one. An outcome can be matter how good they are guaranteed by no lawyer, no. Your lawyer is wanted by you to be confident they can build a strong case to represent you, however not so arrogant to believe that they cannot lose.

Those people who are wanting to determine a lawyer to hire would be smart to conduct an interview. It is important that you talk with any possible lawyers so that you can gauge their experience level and what they can do for you. It will also allow you to develop a report with whoever you end up engaging.

Make an effort to fit the company that you choose with the significance of the specific situation that you are in. You will wish to have a big organization by your side, if you are in a significant emergency.

A good idea to remember if you’re going to be dealing with an attorney in a criminal case is to be completely honest. For legal reasons, whatever you say to your attorney must remain secret. Telling the facts will also give your lawyer the most effective shot at winning your case.

Tell your lawyer everything. Lawyers are bound by confidentiality policies, even at initial consultations, therefore don’t hold back. Withholding information will simply make your lawyer’s job tougher and might even damage your case. So that you can do the best job possible, your lawyer needs every one of the information regarding your situation.

Make sure you understand the costs associated with a particular attorney beforehand. You need to consider what you are able to afford, before you even begin the process of seeking someone out. Discuss the payment plan and fees, as you call different attorneys. Do not be surprised later on!

Any initial meeting or conversation with legal counsel should include four important issues that you question them. Could be the lawyer experienced in your particular form of situation? Do they cost flat rates or hourly fees? Simply how much do they estimate the total cost is going to be? Just how long will this take to completely solve?

Ensure before hiring legal counsel that work allows you to review all of the charges and expenses. Make certain you know his hourly fee, in addition to the fee for every single one of his office staff, if you are paying your attorney by the hour.

If you have been faced with a crime, are in an accident or think you need legal help, you need to employ an attorney. The total amount of time that you wait to create this choice could be an important factor. You intend to have someone on your side that knows what the law states as quickly as possible.

Agarwal and Company Law Offices LLP., New Delhi, India

Five Things About Intellectual Property That a Startup Should Consider

Intellectual property rights (IPR) system traces its roots back to 3200 BC. Renaissance Northern Italy is thought to be the cradle of IP system. The first copyright was issued to a printing press invented in the 16th century while the first patent was issued in Florence in 15th century to Filippo Brunelleschi for a floating architectural crane. Trademarks are the oldest category of IPR.

Any organization that is planning its entry into the market should definitely keep IPR in mind. Because the benefits will not just make you richer but can far outweigh the other tangible benefits you get from your business.

Here are five points for a startup to keep in mind :

1. Single intellectual property right is enough to launch your venture

A strong single IP right can give an edge to your new venture and also makes your entry into the market comparatively easy. IP can build a fortress around the organization and protect it from competition. To leverage IP correctly, it is important to know the IP focus of an organization. For example, if you are a technology driven startup, then patents will play a major role besides copyright, trademark & industrial design. If the startup is in the business of movies, then copyright is the king. If the startup is related to games or animation then industrial design along with copyright will take prime position.

Google’s first patent, US6285999, filed on Jan 9, 1998 called Page Rank was a link analysis algorithm. The patent was assigned to Stanford University and not Google in the beginning, as this technology was developed by Sergey Brin and Larry Page when they were PhD students at Standford. Google had exclusive license rights on the patent from Stanford University. Later on the founders purchased the rights from the University for 1.8 million shares of Google in exchange of use of patent. Later in 2005 the University altogether sold the shares for $336 million. Both the institute (assignee) and students (inventors) rightfully exploited their IP rights to build today’s tech giant, Google. The Page Rank IP also holds a trademark protection – an example of a single invention being protected by two different types of IP.

2. DEVELOP YOUR IP PORTFOLIO

It would be a good idea for startups or any business, to align core competencies of business with their IP strategy. This helps to build a strong IP portfolio. Almost all patents of Google are in ‘computing, calculating and counting’ domain. Thus Google follows a very focused innovation and IP generation process.

For example: In the computing space, Google has registered a patent to detect events of interest in context of network traffic, registered as US7970934B1. In this case Google has registered the patent which forecasts the traffic that will come to the Google Search page to search information about any event of interest, like an earthquake. This helps them efficiently manage site traffic and improve user experience.

3. BE AWARE OF IPR OF OTHERS

It is advisable for startups to know the IPR of others to avoid infringement. Remember ‘law does not forgive ignorance’, so no point pleading ignorance in case of a lawsuit.

In October 2006 when Google acquired YouTube, organizations like Viacom Mediaset and the English Premier League filed lawsuits against YouTube for violation of copyright. Viacom said that more than 150,000 unauthorized clips of material owned by Viacom were viewed on YouTube. And Google had to payup for this unauthorized use of Viacom’s IP right.

4. OBSERVE YOUR COMPETITION

Besides an internal focus, it is desirable to keep an eye on your competitor’s IP development. Patent analytics and business analytics can help know the technology trend and market scenario of competitors.

Google keeps a close watch on what Yahoo!, Microsoft, eBay, Amazon, Facebook, Hulu and Washington Post among others are what they are doing. Known as competitive intelligence, Google tracks its competitor’s technology development closely to ensure they are not caught unawares. For example, when Google launched Google Docs it was in direct competition to Microsoft Office’s Word. This gave users the advantage to directly work on a word file online without have to download it to make any changes. This move by Google has impacted the need for users to have a licensed copy of MS Word on their devices to work.

5. COMPETE WITH YOURSELF

To grow, compete with yourself and develop new technologies or brands which will satisfy your customer. When Larry & Sergey founded Google in 1998, they started with their core product — search engine. Later they built the revolutionary email platform – Gmail, creating threat for Yahoo! and have now ventured into cloud based applications that threatens Microsoft.

The creations by Google are result of out-of-the-box thinking which resulted in disruptive innovations. This intellectual input by inventors at Google is rightly protected by IP regimes. And Google is able to commercialize these inventions appropriately and at the right time.

Source: Gouri Gargate, Yourstory. in

Agarwal and Company Law Offices LLP.

India Joins the International Trademark System

Minister for Commerce and Industry, Mr. Anand Sharma submitted India's instrument of accession to the Madrid Protocol for the International Registration of Marks at the World Intellectual Property Organization (WIPO). MR. Sharma is attending a High Level Policy Dialogue on "Innovation and Development: The Indian Experience" at the WIPO. The treaty will come into force with respect to India from July 8, 2013.

The main attraction of the Madrid System is that it offers a trademark owner the opportunity of having his trademark protected in all the member countries of the Madrid system through a single application in a single language with a single set of fees. As a result of India joining the Madrid System, trademark owners can get their trademarks protected in the Indian market as well as in the markets of the eighty nine other member countries through a single application. This step therefore, makes it much easier for trademark owners to get protection for their trademarks in India by significantly reducing the paperwork and currency involved. The same benefit is also available for Indian companies who want their trademarks protected in the other 89 member countries of the Madrid  System.

The Madrid System also allows trademark owners the benefit of online tools which can be used to find existing trademarks, estimate the filing costs and to make electronic payments for the same, check registration status etc. This makes the task of subsequent management of the trademark much easier as well as registration can be renewed online and subsequent changes can be recorded etc through a single procedural step.

These benefits have resulted in the Madrid System becoming attractive for large businesses as well as SME's.  While there has generally been a strong growth in demand for IPR's in 2012, there has been a 4.1% increase in the number of trademark applications filed under the Madrid system in particular in 2012 as compared to 2011. In fact there were 44,018 applications filed in 2012 which was the highest number of applications filed under the Madrid system till date.

On the whole, India's membership in the Madrid System appears to be a welcome step for foreign companies who wish to register their trademarks in India as well as for Indian companies who can get registration for their trademarks in any or all of the member countries of the Madrid system, according to their business needs through a cost-effective, time-friendly, comparatively hassle-free step.

ü      The Madrid system (officially the Madrid system for the international registration of marks) is the primary international system for facilitating the registration of trademarks in multiple jurisdictions around the world.

ü      Its legal basis is the multilateral treaty Madrid Agreement Concerning the International Registration of Marks of 1891, as well as the Protocol Relating to the Madrid Agreement (1989).

ü      The Madrid system provides a centrally administered system of obtaining a bundle of trademark registrations in separate jurisdictions.

ü      Registration through the Madrid system does not create an ‘international’ registration, as in the case of the European Community Trade Mark system; rather, it creates a bundle of national rights able to be administered centrally.

ü      Madrid provides a mechanism for obtaining trademark protection in many countries around the world which is more effective than seeking protection separately in each individual country or jurisdiction of interest.

ü      Madrid now permits the filing, registration and maintenance of trade mark rights in more than one jurisdiction, provided that the target jurisdiction is a party to the system.

ü      The Madrid system is administered by the International Bureau of the World Intellectual Property Organization (WIPO) in Geneva, Switzerland.

Agarwal and Company Law Offices LLP., India

FDI boosters on cards

The government is considering a series of measures to liberalize the country’s foreign direct investment (FDI) policy.

As part of this, it is looking at permitting 26 per cent FDI in insurance broking through the automatic route, which would mean a nod from the Foreign Investment Promotion Board (FIPB) would not be necessary.

The Department of Economic Affairs has also suggested that activities covered under the non-banking financial company list be enlarged to include financial services such as insurance agencies and services auxiliary to insurance. It is also seeking to allow up to 100 per cent FDI in commodity broking under the automatic route, subject to certain capitalization norms.

Many of these proposals would be incorporated in the consolidated FDI policy, which is modified every six months. The latest version is expected soon.

In a major boost to FDI in wholesale retailing, the government is set to clarify the definition of a group company. Under the definition, group companies would mean two or more enterprises that directly or indirectly are in a position to exercise 26 per cent or more of the voting rights of another company, or can appoint more than 50 per cent of the members of the board of directors.

Walmart had approached the government for a clarification on the definition of what constituted a group.

The government had earlier scrutinized the relationship between Bharti Walmart - a 50-50 joint venture for cash-and-carry between the Bharti group and Walmart - and Bharti Retail - a wholly owned front-end retail company of the Bharti group.

Branded international retail stores in the fashion and jewellery businesses have been stymied from setting up stores through the single-brand retailing window due to a clause that makes it mandatory for these to sell only those products “which are branded during manufacture”. The government is planning to put a clarificatory guideline exempting such firms from this rider.

The government is also looking at permitting a foreign company that has picked up the entire stake in a pharma company to make additional investment through the automatic route, but with a few riders. It can now infuse fresh capital or convert external commercial borrowing in the Indian company into equity without going to the FIPB every time. But the money invested must not be used for acquisition of a domestic pharma company.

Foreign route

ü      What the government is planning

ü      26% FDI in insurance broking through the automatic route

ü      Up to 100%  FDI in commodity broking under the automatic route

ü      Clarify what is a group company in policy on FDI in wholesale trading

ü      Exempt single-brand retailers in jewellery from selling only products “which are branded during manufacture”

ü      Permit a foreign company that has picked up 100% stake in an existing pharma firm to make additional investment through the automatic route, but with a few riders

ü      Warrants and partly paid shares to be allowed as instruments of FDI

Courtesy: Surajeet Das Gupta