Consumer Products being watched by Big Companies Like Hawks

Everyone deals with trademarks on a daily basis. Trademarks are everywhere. They are in your kitchen, in your bathroom, in newspapers, in magazines, in restaurants, in department stores, on television, on radio — even on benches and buses. As consumers, our purchasing decisions are constantly influenced by trademarks. Everyday each of us encounters hundreds of trademarks. A trip to a grocery store or mall will put you in contact with thousands of trademarks in just one visit. As business people, we need a better understanding of why trademarks are so important to effective commerce and how to protect ourselves.

Venice Cookie Co. Forced To Rebrand Their Chocolate Chews

First it was Conscious Care Cooperative and TinctureBell. Hershey, the national candy company, didn’t like the names Reefer’s Peanut Butter Cups, Mr. Dankbar, Ganja Joy, Dabby Patty and Hasheath bars, alleging the names were too similar to their own Reese’s, Mr. Goodbar, Almond Joy, York Peppermint Pattie and Heath. Most recently, Venice Cookie Company found itself in a conflict with Tootsie Roll Industries.

After receiving a letter demanding they quit selling their chocolate chews under the name “Tai’s Cute lil’ Tootsies,” the Venice Cookie Co. quickly got to work on rebranding their product as “The 4.20 Bite.”

Do consumers really believe Hershey or Tootsie Roll Industries is making marijuana-infused candy? I don’t think so, and I don’t think these companies do either. However, the simple fact that consumers will seek out certain products, or even avoid certain products, depending on the trademark, creates a strong argument for brands looking to protect their pre-existing trademarks.

Generally, to win a trademark claim for infringement, the suing party (the plaintiff) must establish that (1) the mark is valid and legally protectable; (2) the mark is owned by the plaintiff; and (3) the party being sued (the defendant) is likely to create confusion concerning the origin of the goods or services by use of its mark to identify goods or services.

Important Factors To Consider When Comparing Trademarks

When determining likelihood of confusion, courts use several factors derived from a 1961 case. Polaroid Corp. v. Polarad Elecs. Corp., 287 F.2d 492 (2d Cir. 1961).  These factors, sometimes known as the “Polaroid factors” may vary slightly as federal courts apply them throughout the country. The factors are intended as a guide.  Let’s break down a few.

Strength of the Mark

A mark is “weak” if it is descriptive and has not acquired sufficient secondary meaning. A mark is “strong” when it has acquired secondary meaning, or if it is arbitrary, fanciful or suggestive.  Let’s face it who hasn’t used the word “tootsies” to refer to toes.  Kenny Morrison, co-founder of The Venice Cookie Company even says he was inspired to make this product when he saw cute lil’ baby toes.  I know I personally say “tootsies” when I see cute, little baby feet.  It makes perfect sense to me why The Venice Cookie Company would pick the term “tootsies.”  Look at the chews, they look like fat, pudgy toes.

Similarity of the Marks

As a general rule, marks must be compared in their entirety, including appearance, sound, connotation, and commercial impression.  OK, I’ll give Tootsie Rolls a little weight on this one.  TOOTSIE versus TOOTSIES.  Tootsie Roll Industries was fortunate that Stern & Saalberg Company realized the value of trademarks and obtained a federal registration for the mark TOOTSIE back in 1909.  Title eventually ended up in the name of Tootsie Roll Industries, although it is not clear how from the chain of title recorded at the United States Patent & Trademark Office.  Tootsie Roll Industries has since registered the mark TOOTSIE in other formats and for various goods.  I  wonder  how many people actually refer to the candy as TOOTSIE separate and apart from “ROLL.”  If I want a piece of the candy, I say give me a Tootsie Roll.

Similarity of the Product

The standard of infringement is whether an ordinary prudent purchaser would be likely to purchase one product, believing he was purchasing the other.  In other words, would TOOTSIES (especially used in close proximity with Tai’s Cute ‘lil) when used for cannabis-infused chocolate chews be confused with TOOTSIE candy. As a general rule, a trademark owner can use an identical or  similar mark as long it is on completely dissimilar goods. For example, the use of the mark Lexus on automobiles was determined not to confuse consumers of the Lexis database services.  The issue here appears to be that both companies are selling chocolate food products.  But anyone who is familiar with the cannabis industry knows that none of the big guys are making cannabis-infused products.  Advertising and distribution channels are not similar either.  One could also argue that the Venice product is a medicine not a candy.

Actual Confusion

Proof of actual confusion is not essential in determining trademark infringement. However, such evidence may be compelling in an infringement case. We know Tootsie Rolls has been selling its product since as early as 1909. Venice Cookie has been selling its product for several years. Why did it take years for Tootsie Rolls to complain? I suspect that it wasn’t until the internet made it easier for Tootsie Rolls to find Venice Cookie’s product that they took notice.  Unfortunately, the internet is a two-edged sword. I find it very unlikely that anyone actually complained to Tootsie Rolls that they were confused.

Competitor’s Intent

Although intent is not essential in proving infringement, it is a relevant factor. According to the Restatement of Trademarks, it is appropriate to consider intent because a party intending to cause confusion will generally be successful in doing so. Direct evidence of the competitor’s intention to deceive is usually unavailable and the complaining party must depend on circumstantial evidence such as how the competitor’s mark was chosen. The co-founder of Venice Cookie has already told us how he chose the mark. Remember those cute pudgy baby toes.

Bridging the Gap

What is the likelihood that the senior user will bridge the gap.  If it is probable that the senior user will expand into the junior user’s product area, the more likely there will be confusion.  This basically means is it probable Tootsie Rolls Industries will sell cannabis-infused products.  Who knows, maybe someday companies like Tootsie Rolls will make products in the industry, but I don’t see that happening any time soon.

Degree of Care Exercised by the Consumer

The degree of care a consumer takes in making purchases varies according to the purchase. For example, someone buying an expensive item is more likely to be discriminating and is less likely to be confused as to similar marks. The theory here is that you buy expensive items less frequently. Under this theory, the courts require a more substantial showing of similarity to justify a claim of likelihood of confusion. The same is true for items purchased by “sophisticated buyers,” such as doctors, avid hobbyists, interior decorators, realtors, etc., who arrive at the purchasing point already knowledgeable about the goods. A sophisticated buyer is less likely to be confused because of their superior knowledge as to purchasing decisions.

An “ordinary purchaser,” particularly one that buys inexpensive items on impulse is considered the most likely to be confused by similar marks.  It would be an interesting argument to make that a MMJ patient falls in the category of a “sophisticated buyer.” Unlike the ordinary purchaser who quickly scans the shelves at a supermarket and impulsively buys a box of candy without realizing that he bought the wrong one and was confused as to the choice of brands, a MMJ patient arrives at a dispensary already knowledgeable about the goods he wants to purchase or is educated by the budtender before making a buying decision. There is also a significant difference in price between an ordinary piece of candy and MMJ edible.

Did Venice Cookie Company really need to change its product’s name? You decide for yourself… but I know where I stand. I think it would have been a very interesting case to see litigated. I understand why they didn’t fight. Trademark litigation is expensive and time-consuming, with no guarantee how it will be decided in the end, and entrepreneurs and start-ups can’t afford to take the risk most of the time. One thing is for certain, there will likely be many more trademark battles to come as the industry takes shape.

http://www.medicaljane.com/2014/09/13/the-big-companies-are-watching-consumer-products-like-hawks-beware/

Disney Takes Legal Action Against Deadmau5 For Trademark Infringement : Entertainment : Chinatopix

Disney Takes Legal Action Against Deadmau5 For Trademark Infringement : Entertainment : Chinatopix

Taylor Swift fires back in trademark infringement lawsuit

Taylor Swift fires back in trademark infringement lawsuit

The Hershey Co. launches trademark infringement court battle against candy importer

Things aren't always sweet in the candy industry.

That much is evident from a wide-ranging lawsuit The Hershey Company just filed in federal court, accusing a importer of infringing its trademarks for the candy maker's best-known products.

Essentially, Hershey claims LBB Imports LLC is bringing in foreign-made candy with packaging and labeling that mimics that of Hershey's well-known brands - Reese's, York, Malteser, Cadbury, Kit Kat and Rolo.

LBB's actions, which continue despite protests by Hershey, are confusing consumers and illegally eating into Hershey's multi-billion share of the candy market, according to the lawsuit filed in U.S. Middle District Court in Harrisburg.

Hershey also accuses LBB of breaching earlier agreements to stop infringing on its famous trademarks. The importer, which has offices in California and New Jersey, has even started marketing a new catalog with its allegedly infringing products, the suit states.

Hershey doesn't list a specific damage amount in the suit, but is is seeking triple damages from LBB, based on an accounting it asks the court to order of the profits the importer has made through the alleged infringements.

The stakes could be quite high, given the profits Hershey lists in the suit for its own products. Sales of the Reese's line alone have exceeded $7 billion in the U.S. in the last five years, Hershey reported, while the Kit Kat and Cadbury products have had sales of around $1 billion and $500 million during the same period. Yearly sales of York and Rolo products each exceed $100 million annually, according to the suit.

Hershey controls all those marks either directly or under license.

LBB is violating those protections both by word and appearance, Hershey contends. LBB's Cadbury, Rolo and Kit Kat imports bear the same name as Hershey's products, according to the suit while the LLB's Yorkie and Maltesers products are only slight name variations from Hershey's York and Malteser lines.

Packaging color schemes also are too close to be legal, Hershey contends. For example, it argues, packaging of LBB's Toffee Crisp product bears the same licensed "Orange Mark" color scheme of Hershey's Reese's line.

Hershey is asking Judge John E. Jones III for an order blocking continued alleged infringement. It wants the judge to direct LBB to turn over its products for destruction and pay for "corrective advertising" to address the harm Hershey contends that LBB has caused to its marketing efforts and sales.

The Hershey Co. is no stranger to trademark infringement battles and is known for fiercely protecting those marks.

The firm has waged such battles with arch rival Mars Inc., with candidates forLancaster County sheriff and the Maryland state Senate who used images similar to company products in their campaigns, with a Michigan furniture company and with Williams-Sonoma over a cake pan design that Hershey claimed looked too much like its signature chocolate bar.

http://www.pennlive.com/midstate/index.ssf/2014/08/not_so_sweet_the_hershey_co_la.html

Nvidia files a patent lawsuit against Samsung and Qualcomm

Nvidia filed patent infringement lawsuits in Delaware against Samsung and Qualcomm concerning graphics processor technologies which Nvidia claims those companies have used in their products without license.

The graphics chip maker also asked the U.S. International Trade Commission (ITC) "to block shipments of Samsung Galaxy mobile phones and tablets containing Qualcomm's Adreno, ARM's Mali, or Imagination's PowerVR graphics architectures."

Nvidia's Tegra mobile processors with GPU functionality compete with Qualcomm's Snapdragon and Samsung's Exynos chips.

Among the products Nvidia wants blocked are Samsung's Galaxy Note Edge,Galaxy Note 4, Galaxy S5, Galaxy Note 3, and Galaxy S4 smartphones, as well as the Galaxy Tab S, Galaxy NotePRO, and Galaxy Tab 2 tablets.

Nvidia said the seven patents it is claiming Qualcomm and Samsung have infringed concern GPU technologies like programmable shading, unified shaders, and multithreaded parallel processing.

The lawsuits are the first patent infringement complaints Nvidia has made in its 21-year history, the company.

"As the world leader in visual computing, Nvidia has invented technologies that are vital to mobile computing. We have the richest portfolio of computer graphics IP in the world, with 7,000 patents granted and pending, produced by the industry's best graphics engineers and backed by more than $9 billion in R&D," Nvidia CEO Jen-Hsun Huang said in a statement.

"Our patented GPU inventions provide significant value to mobile devices. Samsung and Qualcomm have chosen to use these in their products without a license from us. We are asking the courts to determine infringement of Nvidia's GPU patents by all graphics architectures used in Samsung's mobile products and to establish their licensing value."

Samsung told PCMag it had no comment on the matter. A Qualcomm spokesperson said the company was "aware of the complaints and [we] are evaluating them."

At issue for Nvidia are Qualcomm's proprietary Adreno GPU cores used in the Snapdragon processors, which power many of Samsung's mobile devices, as well as ARM's Mali GPUs and Imagination Technologies' PowerVR GPUs, which are used in Samsung's own Exynos mobile chips.

Nvidia claimed that it reached a dead end in negotiations with Samsung on negotiations to license its IP for use in Samsung's devices.

"With Samsung, Nvidia's licensing team negotiated directly with Samsung on a patent portfolio license," Nvidia's David Shannon said. "We had several meetings where we demonstrated how our patents apply to all of their mobile devices and to all the graphics architectures they use. We made no progress. Samsung repeatedly said that this was mostly their suppliers' problem."

http://www.pcmag.com/article2/0,2817,2467372,00.asp

Patent Office opens up data of expired patents

The know-how and technological details of the patents, which has already been expired or lapsed validity in the country, is being opened up for the small and medium enterprises to utilise them for their business growth, said a higher official in the Indian Patent Office. India is also expected to sign a bilateral agreement with the European Patent Office (EPO) by September to have cooperation in various levels.

Participating in the inaugural function of 5th edition of IPEX 2014- conference on emerging trends in IP management and commercialisation, Chaitanya Prasad, controller general of patents, designs and trademarks, said that the patent office is offering the details of the expired patents through its website, free of cost.

He said that the knowledge of the expired patent, which becomes a public property, could be used by the small and medium level enterprises to develop new products. However, they cannot re-patent it.

Speaking about the proposed tie up with the EPO, expected to be signed in Geneva in the last week of September, he said that the agreement would be to develop biannual work plan to work on cooperation in various aspects including the training and data exchange of human resources and practices, along with other things,” he said.

In terms of standard practices, he said that the Patent Office wants to be at par with the best of the world practices by 2020 and at present, the patent examiners in India are almost twice faster than the examiners in US and European Patent Offices.

Around 43,000 applications are filed with the Patent Office every year. While majority of patent applications are filed by foreign firms, majority of trademark applications are from Indian applicants. Of the total patent applications, around 20 per cent are from Indian firms while in trademarks, the Office gets around 2.02 lakh applications a year, of which almost 90 per cent are from Indian applicants.

In order to improve the efficiency of patent filing mechanism, the Patent Office is planning to have all banks under its comprehensive payment gateway from early next week, which would be helpful for its applicants to pay online.

Source:http://www.business-standard.com/article/economy-policy/patent-office-opens-up-data-of-expired-patents-114090501082_1.html

Amazon.com’s retail practices in India come under scrutiny

Regulators in India are investigating whether Amazon.com Inc may have circumvented restrictions placed on foreign investors by selling directly to domestic consumers, The Wall Street Journal on Friday, citing unidentified sources. The finance ministry’s enforcement directorate is looking into whether Amazon.com’s local subsidiary may have sold directly to customers, but made it look as if the sales were made by other companies, the Journal report said, quoting two people familiar with the matter. India does not allow foreign firms to own majority stakes in retail companies that sell more than one brand. Amazon.com is allowed to operate there because it acts as a marketplace rather than a retailer, according to the Journal. Amazon was not immediately available for comment. The Seattle-based e-commerce company makes its money in India by charging third-party suppliers to use its website to sell some 17 million different products, from books to electronics. Asia’s second-largest country is seen as strategically important to Amazon as it tries to ramp up growth and profits. Amazon.com has said it plans to invest $2 billion more in India, where it has slashed prices, ramped up marketing and accelerated warehouse construction to try and take on local competitors. Indian investigators are also examining whether Amazon exerts control over the prices of products sold on its website, one of the Journal story’s sources said. “An ideal marketplace should not have any interference from the platform operator,” the newspaper cited the person as saying.

http://www.livemint.com/Companies/rsyvnEONMRcob7tdn5OFhP/Amazoncoms-retail-practices-in-India-come-under-scrutiny.html?utm_source=copy

Cyber Law in India

INTRODUCTION

"Cyber" is a prefix used to describe a person, thing, or idea as part of the computer and information age. Taken from kybernetes, Greek word for "steersman" or "governor," it was first used in cybernetics, a word coined by Norbert Wiener and his colleagues. The virtual world of internet is known as cyberspace and the laws governing this area are known as Cyber laws and all the netizens of this space come under the ambit of these laws as it carries a kind of universal jurisdiction. Cyber law can also be described as that branch of law that deals with legal issues related to use of inter-networked information technology. In short, cyber law is the law governing computers and the internet.

The growth of Electronic Commerce has propelled the need for vibrant and effective regulatory mechanisms which would further strengthen the legal infrastructure, so crucial to the success of Electronic Commerce. All these regulatory mechanisms and legal infrastructures come within the domain of Cyber law.

Cyber law is important because it touches almost all aspects of transactions and activities on and involving the internet, World Wide Web and cyberspace. Every action and reaction in cyberspace has some legal and cyber legal perspectives.

Cyber law encompasses laws relating to –

• Cyber crimes

• Electronic and digital signatures

• Intellectual property

• Data protection and privacy

CYBER LAW IN INDIA

In India, cyber laws are contained in the Information Technology Act, 2000 ("IT Act") which came into force on October 17, 2000. The main purpose of the Act is to provide legal recognition to electronic commerce and to facilitate filing of electronic records with the Government.

The information Technology Act is an outcome of the resolution dated 30th January 1997 of the General Assembly of the United Nations, which adopted the Model Law on Electronic Commerce, adopted the Model Law on Electronic Commerce on International Trade Law. This resolution recommended, inter alia, that all states give favourable consideration to the said Model Law while revising enacting new law, so that uniformity may be observed in the laws, of the various cyber-nations, applicable to alternatives to paper based methods of communication and storage of information.

The Department of Electronics (DoE) in July 1998 drafted the bill. However, it could only be introduced in the House on December 16, 1999 (after a gap of almost one and a half years) when the new IT Ministry was formed. It underwent substantial alteration, with the Commerce Ministry making suggestions related to e-commerce and matters pertaining to World Trade Organization (WTO) obligations. The Ministry of Law and Company Affairs then vetted this joint draft.

After its introduction in the House, the bill was referred to the 42-member Parliamentary Standing Committee following demands from the Members. The Standing Committee made several suggestions to be incorporated into the bill. However, only those suggestions that were approved by the Ministry of Information Technology were incorporated. One of the suggestions that was highly debated upon was that a cyber café owner must maintain a register to record the names and addresses of all people visiting his café and also a list of the websites that they surfed. This suggestion was made as an attempt to curb cyber crime and to facilitate speedy locating of a cyber criminal. However, at the same time it was ridiculed, as it would invade upon a net surfer’s privacy and would not be economically viable. Finally, this suggestion was dropped by the IT Ministry in its final draft.

The Union Cabinet approved the bill on May 13, 2000 and on May 17, 2000, both the houses of the Indian Parliament passed the Information Technology Bill. The Bill received the assent of the President on 9th June 2000 and came to be known as the Information Technology Act, 2000. The Act came into force on 17th October 2000.

With the passage of time, as technology developed further and new methods of committing crime using Internet & computers surfaced, the need was felt to amend the IT Act, 2000 to insert new kinds of cyber offences and plug in other loopholes that posed hurdles in the effective enforcement of the IT Act, 2000.

This led to the passage of the Information Technology (Amendment) Act, 2008 which was made effective from 27 October 2009. The IT (Amendment) Act, 2008 has brought marked changes in the IT Act, 2000 on several counts.

NATIONAL POLICY ON INFORMATION TECHNOLOGY 2012

The Union Cabinet has recently in September 2012, approved the National Policy on Information Technology 2012. The Policy aims to leverage Information & Communication Technology (ICT) to address the country’s economic and developmental challenges.

The vision of the Policy is “To strengthen and enhance India’s position as the Global IT hub and to use IT and cyber space as an engine for rapid, inclusive and substantial growth in the national economy”. The Policy envisages among other objectives, to increase revenues of IT and ITES Industry from 100 Billion USD at present to 300 Billion USD by 2020 and expand exports from 69 Billion USD at present to 200 Billion USD by 2020. It also aims to create a pool of 10 million additional skilled manpower in ICT.

The thrust areas of the policy include:

1. To increase revenues of IT and ITES (Information Technology Enabled Services) Industry from 100 Billion USD currently to 300 Billion USD by 2020 and expand exports from 69 Billion USD currently to 200 Billion USD by 2020.

2. To gain significant global market-share in emerging technologies and Services.

3. To promote innovation and R&D in cutting edge technologies and development of applications and solutions in areas like localization, location based services, mobile value added services, Cloud Computing, Social Media and Utility models.

4. To encourage adoption of ICTs in key economic and strategic sectors to improve their competitiveness and productivity.

5. To provide fiscal benefits to SMEs and Startups for adoption of IT in value creation

6. To create a pool of 10 million additional skilled manpower in ICT.

7. To make at least one individual in every household e-literate.

8. To provide for mandatory delivery of and affordable access to all public services in electronic mode.

9. To enhance transparency, accountability, efficiency, reliability and decentralization in Government and in particular, in delivery of public services.

10. To leverage ICT for key Social Sector initiatives like Education, Health, Rural Development and Financial Services to promote equity and quality.

11. To make India the global hub for development of language technologies, to encourage and facilitate development of content accessible in all Indian languages and thereby help bridge the digital divide.

12. To enable access of content and ICT applications by differently-abled people to foster inclusive development.

13. To leverage ICT for expanding the workforce and enabling life-long learning.

14. To strengthen the Regulatory and Security Framework for ensuring a Secure and legally compliant Cyberspace ecosystem.

15. To adopt Open standards and promote open source and open technologies

The Policy has however not yet been notified in the Official Gazette.

INFORMATION TECHNOLOGY ACT, 2000

Information Technology Act, 2000 is India’s nodal legislation regulating the use of computers, computer systems and computer networks as also data and information in the electronic format. This legislation has touched varied aspects pertaining to electronic authentication, digital (electronic) signatures, cyber crimes and liability of network service providers.

The Preamble to the Act states that it aims at providing legal recognition for transactions carried out by means of electronic data interchange and other means of electronic communication, commonly referred to as "electronic commerce", which involve the use of alternatives to paper-based methods of communication and storage of information and aims at facilitating electronic filing of documents with the Government agencies. This Act was amended by Information Technology Amendment Bill, 2008 which was passed in Lok Sabha on 22nd December, 2008 and in Rajya Sabha on 23rd December, 2008. It received the assent of the President on 5th February 2009 and was notified with effect from 27/10/2009.

The IT Act of 2000 was developed to promote the IT industry, regulate ecommerce, facilitate e-governance and prevent cybercrime. The Act also sought to foster security practices within India that would serve the country in a global context. The Amendment was created to address issues that the original bill failed to cover and to accommodate further development of IT and related security concerns since the original law was passed.

The IT Act, 2000 consists of 90 sections spread over 13 chapters [Sections 91, 92, 93 and 94 of the principal Act were omitted by the Information Technology (Amendment) Act 2008 and has 2 schedules.[ Schedules III and IV were omitted by the Information Technology (Amendment) Act 2008].

Rules notified under the Information Technology Act, 2000

a) The Information Technology (Reasonable security practices and procedures and sensitive personal data or information) Rules, 2011

b) The Information Technology (Electronic Service Delivery) Rules, 2011

c) The Information Technology (Intermediaries guidelines) Rules, 2011

d) The Information Technology (Guidelines for Cyber Cafe) Rules, 2011

e) The Cyber Appellate Tribunal (Salary, Allowances and other terms and conditions of service of Chairperson and Members) Rules, 2009

f) The Cyber Appellate Tribunal (Procedure for investigation of Misbehaviour or Incapacity of Chairperson and Members) Rules, 2009

g) The Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public), 2009

h) The Information Technology (Procedure and Safeguards for interception, monitoring and decryption of information) Rules, 2009

i) The Information Technology (Procedure and Safeguard for Monitoring and Collecting Traffic Data or Information) Rules, 2009

j) The Information Technology (Use of electronic records and digital signatures) Rules, 2004

k) The Information Technology (Security Procedure) Rules, 2004

l) The Information Technology (Other Standards) Rules, 2003

m) The Information Technology (Certifying Authority) Regulations, 2001

n) Information Technology (Certifying Authorities) Rules, 2000

Brief Overview of the Information Technology Act, 2000

The Information Technology Act was enacted with a view to give a fillip to the growth of electronic based transactions, to provide legal recognition for e-commerce and e-transactions, to facilitate e-governance, to prevent computer based crimes and ensure security practices and procedures in the context of widest possible use of information technology worldwide.

Applicability of the Act

The Act will apply to the whole of India unless otherwise mentioned. It applies also to any offence or contravention there under committed outside India by any person.

The Act shall not apply to the following documents or transactions –

• A negotiable instrument as defined in Sec.13 of the Negotiable Instruments Act, 1881;

• A power of attorney as defined in Sec.1A of the Powers of Attorney Act, 1882;

• A trust as defined in Section 3 of the Indian Trusts Act, 1882;

• A Will as defined in Sec.2(h) of the Indian Succession Act, 1925 including any other testamentary disposition by whatever name called;

• Any contract for the sale or conveyance of immovable property or any interest in such property.

Scheme of the Act

- Chapter – I – Preliminary

- Chapter – II – Digital Signature and Electronic Signature (Sections 3 & 3A)

- Chapter – III – Electronic Governance (Sections 4 to 10A)

- Chapter – IV – Attribution, Acknowledgement and Dispatch of Electronic Records (Sections 11 to 13)

- Chapter – V – Secure electronic records and secure electronic signatures (Sections 14 to 16)

- Chapter – VI – Regulation of Certifying Authorities (Sections 17 to 34)

- Chapter – VII – Electronic Signature Certificates (Sections 35 to 39)

- Chapter – VIII – Duties of Subscribers (Sections 40 to 42)

- Chapter – IX – Penalties, Compensation and Adjudication (Sections 43 to 47)

- Chapter X – The Cyber Appellate Tribunal (Sections 48 to 64)

- Chapter XI – Offences (Sections 65 to 78)

- Chapter XII – Intermediaries not to be liable in certain cases (Section 79)

- Chapter XIIA – Examiner of Electronic Evidence (Section 79A)

- Chapter XIII – Miscellaneous (Sections 80 to 90)

First Schedule – Documents or Transactions to which the Act shall not apply

Second Schedule – Electronic signature or Electronic authentication technique or procedure

ELECTRONIC COMMERCE

Electronic commerce, commonly known as e-commerce or e-comm, is the buying and selling of products or services over electronic systems such as the Internet and other computer networks. Electronic commerce draws on such technologies as electronic funds transfer, supply chain management, Internet marketing, online transaction processing, electronic data interchange (EDI), inventory management systems, and automated data collection systems. Modern electronic commerce typically uses the World Wide Web (www) at least at one point in the transaction's lifecycle, although it may encompass a wider range of technologies such as email, mobile devices and telephones as well.

Contemporary electronic commerce involves everything from ordering "digital" content for immediate online consumption, to ordering conventional goods and services, to "meta" services to facilitate other types of electronic commerce.

On the institutional level, big corporations and financial institutions use the internet to exchange financial data to facilitate domestic and international business. Data integrity and security are very hot and pressing issues for electronic commerce.

E-commerce can be divided into:

•E-tailing or "virtual storefronts" on Web sites with online catalogs, sometimes gathered into a "virtual mall".

• The gathering and use of demographic data through Web contacts.

• Electronic Data Interchange (EDI), the business-to-business exchange of data.

• E-mail and fax and their use as media for reaching prospects and established customers (for example, with newsletters).

• Business-to-business buying and selling.

• The security of business transactions.

E-commerce in India

India has an internet user base of over 100 million users. The penetration of e-commerce is low compared to markets like the United States and the United Kingdom but is growing at a much faster rate with a large number of new entrants. The industry consensus is that growth is at an inflection point with key drivers being:

• Increasing broadband Internet and 3G penetration.

• Rising standards of living and a burgeoning, upwardly mobile middle class with high disposable incomes.

• Availability of much wider product range compared to what is available at brick and mortar retailers.

• Busy lifestyles, urban traffic congestion and lack of time for offline shopping.

• Lower prices compared to brick and mortar retail driven by disintermediation and reduced inventory and real estate costs.

• Increased usage of online classified sites, with more consumers buying and selling second-hand goods.

• Evolution of the online marketplace model with sites like ebay, Infibeam, and Tradus.

The India retail market is estimated at $470 Bn in 2011 and is expected to grow to $675 Bn by 2016 and $850 Bn by 2020, – estimated CAGR of 7%. According to Forrester, the e-commerce market in India is set to grow the fastest within the Asia-Pacific Region at a CAGR of over 57% between 2012-16. India e-tailing market in 2011 was about $600 Mn and expected to touch $9 Bn by 2016 and $70 Bn by 2020 – estimated CAGR of 61%. The Online Travel Industry is the biggest segment in eCommerce and is booming largely due to the Internet-savvy urban population.

Some of the aspects of Indian e-commerce that are unique to India (and potentially to other developing countries) are:

• Cash on Delivery as a preferred payment method. India has a vibrant cash economy as a result of which 80% of Indian e-commerce tends to be Cash on Delivery (COD).

• Direct Imports constitute a large component of online sales. Demand for international consumer products is growing much faster than incountry supply from authorized distributors and e-commerce offerings.

E-commerce websites are Internet intermediaries within the meaning of IT Act, 2000. "Intermediary" with respect to any particular electronic records, means any person who on behalf of another person receives, stores or transmits that record or provides any service with respect to that record and includes telecom service providers, network service providers, internet service providers, web hosting service providers, search engines, online payment sites, online-auction sites, online market places and cyber cafes. The IT (Intermediaries Guidelines) Rules of 2011 regulate the functioning of e-commerce websites. Cyber law due diligence is the main aspect that all e-commerce site owners should comply with.

REGULATORY AUTHORITIES

1) Department of Electronics and Information Technology

The Ministry of Communications and Information Technology comprises of the following Departments:

• Department of Information Technology (DEIT)

• Department of Posts

• Department of Telecommunications (DOT)

Department of Electronics and Information Technology (DEIT) under the Ministry of Communications and Information Technology, Government of India is responsible for all matters relating to Cyber Laws, administration of the Information Technology Act. 2000 (21 of 2000) and other IT related laws.

The functions of the Department of Electronics and Information Technology, Ministry of Communications & Information Technology, Government of India are as follows –

• Policy matters relating to Information Technology, Electronics and Internet.

• Initiatives for development of Hardware / Software industry including knowledge based enterprises, measures for promoting Information Technology exports and competitiveness of the industry.

• Promotion of Information Technology and Information Technology enabled services and Internet.

• Assistance to other departments in the promotion of E-Governance, E-Infrastructure, E-Medicine, E-Commerce, etc.

• Promotion of Information Technology education and Information Technology-based education.

• Matters relating to Cyber Laws, administration of the Information Technology Act. 2000 (21 of 2000) and other Information Technology related laws.

• Matters relating to promotion and manufacturing of Semiconductor Devices in the country.

• Interaction in Information Technology related matters with International agencies and bodies.

• Initiative on bridging the Digital Divide, Matters relating to Media Lab Asia.

• Promotion of Standardization, Testing and Quality in Information Technology and standardization of procedure for Information Technology application and Tasks.

• Electronics Export and Computer Software Promotion Council (ESC).

• National Informatics Centre (NIC)

• All matters relating to personnel under the control of the Department.

2) Controller of Certifying Authorities (CCA)

The IT Act 2000 provides for the Controller of Certifying Authorities (CCA) to license and regulate the working of Certifying Authorities. The Certifying Authorities (CAs) issue digital signature certificates for electronic authentication of users. The CCA certifies the public keys of CAs using its own private key, which enables users in the cyberspace to verify that a given certificate is issued by a licensed CA. For this purpose it operates, the Root Certifying Authority of India (RCAI).

3) Cyber Appellate Tribunal

Cyber Appellate Tribunal has been established under the IT Act under the aegis of Controller of Certifying Authorities (CCA). A Cyber Appellate Tribunal consists of one Presiding Officer who is qualified to be a Judge of a High Court or is or has been a member of the Indian Legal Service and is holding or has held a post in Grade I of that service for at least three years supported by other official under him/her.

The Cyber Appellate Tribunal has, for the purposes of discharging its functions under the IT Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908. However, is not bound by the procedure laid down by the Code of Civil Procedure, 1908 but is guided by the principles of natural justice and, subject to the other provisions of this Act and of any rules. The Cyber Appellate Tribunal has powers to regulate its own procedure including the place at which it has its sittings.

Every proceeding before the Cyber Appellate Tribunal shall be deemed to be a judicial proceeding within the meaning of sections 193 and 228, and for the purposes of section 196 of the Indian Penal Code and the Cyber Appellate Tribunal shall be deemed to be a civil court for the purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973.

The composition of the Cyber Appellate Tribunal is provided for under section 49 of the Information Technology Act, 2000. Initially the Tribunal consisted of only one person who was referred to as the Presiding Officer who was to be appointed by way of notification by the Central Government. Thereafter the Act was amended in the year 2008 by which section 49 which provides for the composition of the Cyber Appellate Tribunal has been changed. As per the amended section the Tribunal shall consist of a Chairperson and such number of other Members as the Central Government may by notification in the Official Gazette appoint. The selection of the Chairperson and Members of the Tribunal is made by the Central Government in consultation with the Chief Justice of India. The Presiding Officer of the Tribunal is now known as the Chairperson.

4) Indian Computer Emergency Response Team (ICERT)

The mission of ICERT is to enhance the security of India's Communications and Information Infrastructure through proactive action and effective collaboration. Its constituency is the Indian Cyber-community.

The purpose of the ICERT is, to become the nation's most trusted referral agency of the Indian Community for responding to computer security incidents as and when they occur; the ICERT will also assist members of the Indian Community in implementing proactive measures to reduce the risks of computer security incidents. It provides technical advice to system administrators and users to respond to computer security incidents. It also identifies trends in intruder activity, works with other similar institutions  and organisations to resolve major security issues and disseminates information to the Indian cyber community.

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