Government may introduce Judicial Standards and Accountability Bill, 2010

Source : Indlaw.com

A Bill proposed to ensure ‘greater accountability and transparency’ in India’s higher judiciary provides for ‘rigorous imprisonment and fine for frivolous or vexatious complaints,’ Parliament was told. 

Law and Justice Minister M Veerappa Moily said in a written reply in the Rajya Sabha that the government ‘proposes to bring in The Judicial Standards and Accountability Bill, 2010,’ but did not say when it would do so. 

He was answering Janta Dal (United) member from Bihar Anil Kumar Sahani who wanted to know the salient objectives of the proposed Bill and steps to ‘check misuse of the legislation.’ The Bill will lay down judicial standards to be followed by the Judges of the Supreme Court and the High Courts, a mechanism for enquiring into complaints against Judges and provide for declaration of their assets and liabilities, Moily said. 

The Minister said it would also punish misuse. ‘The Bill provides for rigorous imprisonment and fine for frivolous or vexatious complaints.’ Moily told another member that the government was collecting information on the number Supreme Court judgements which are more than two years old and yet to be implemented. 

He was answering Indian National Congress member from Andhra Pradesh Nandi Yellaiah who wanted to know the number of such judgements and the steps taken for their implementation, especially in his State. 

Answering Bharatiya Janata Party’s Jai Prakash Narayan Singh from Jharkhand, Moily said that a proposal to give the Law Commission ‘statutory status is under consideration of the government.'

Supreme Court asks Vodafone to deposit Rs.2,500 crore

Source : Thaindian.com

The Supreme Court Monday asked telecom major Vodafone to deposit, within three weeks, Rs.2,500 crore as a component of its tax liability on its transaction with Hutchinson International Ltd. for acquiring its India operations Hutch Essar.

The apex court bench of Chief Justice S.H.Kapadia, Justice K.S. Radhakrishnan and Justice Swatanter Kumar asked the telecom giant to give a bank guarantee of Rs.8,500 crore for the balance tax liability calculated against it by the tax authorities.

The court said that Rs.2,500 crore should be deposited within three weeks and bank guarantee of Rs.8, 500 crore be given within eight months. The bank guarantee has to be from a nationalised bank.

The court said that if Vodafone succeeds in its case, the tax authorities would refund the excess amount with interest to be decided by the apex court.

Appearing for Vodafone, senior counsel Harish Salve said that after apportionment, its tax liability comes to Rs.1,330 crore. This was countered by Attorney General G. Vahanvati, who argued that the total tax liability was to the tune of Rs.11,000 crore.

The court then asked Vodafone to deposit an amount of Rs.2,500 crore and give a bank guarantee of Rs.8,500 crore.

Vodafone has challenged the Bombay High Court verdict that asked the tax authorities to go ahead with the assessment of the tax liability of telecom giant arising out its acquisition of India operations of Hutch Essar.

Vodafone has contended that it did not attract the jurisdiction of the Indian tax authorities as Vodafone PLC is a Netherlands based and Hutchinson International Ltd. was Hong Kong based.

It has also contended that the transaction of Vodafone acquiring Hutch Essar too took place on foreign soil.

The entire deal between the two telecom giants was to the tune of $11 billion and the tax liability works out to be $2 billion. Upon conversion in rupee, the tax liability along with interest component works out to be Rs. 11,128 crore, the tax athorities have claimed.

Set up Armed Forces Grievances Redressal Commission : Supreme Court

Source : Indlaw.com

The Supreme Court directed the Union government to set up within two months the Armed Forces Grievances Redressal Commission for speedy disposal of the grievances of the serving and retired servicemen and their family members. 

A bench comprising Justice Markandey Katju and Ms Justice Gyansudha Misra directed that the commission would be headed by a retired Supreme Court Judge and Mr Justice Kuldeep Singh shall be the first chairman. 

The Vice-chairman shall be a retired Chief Justice of a High Court and Justice S S Sodhi shall be the first vice-chairman. 

Retired Army Chief General V P Malik, Lieutenant General Vijay Oberoi (retired Vice Chief of Army Staff) and a civil servant to be appointed by the Centre would be the members. 

The commission office bearers would have tenure of two years, renewable after two years. 

The apex court also directed the commission would also frame and recommend to the Centre a scheme for proper rehabilitation of discharged soldiers who usually retire at the age of 40 years if promoted to the rank of Havildar. 

The apex court also recommended that a discharged soldier should be given alternative employment so that he can support his family and the commission will go into this matter also in detail and suggest appropriate scheme for rehabilitation of ex-army men who also include Air Force and Navy personnel who retire at a relatively young age. 

The commission will have its office in Chandigarh with recommendatory power and all authorities in India civil or military (including the secretary defence and the chiefs of the Army, Navy and Air Force) shall extend all cooperation to the commission to enable it to discharge its functions effectively and the Centre would issue the notification constituting the commission forthwith. 

Directions have been issued on the petition of Pushpavanti who was getting Rs 80 per month as pension after the death of her husband, an Army major who had fought 1948, 1962 and 1965 wars for the country and was a highly decorated officer with 14 medals. In these days a kilogram of Ahrar dal costs Rs 80. 

Her petition automatically stands transferred to the commission for speedy disposal and the next hearing of the case would be on February 7, 2011.


Find the Entire Text of the Judgment here.

Descriptiveness & Registration of Trademark : The Law

The Division Bench of the Delhi High Court has held that a descriptive word cannot be registered as a trademark. The decision was rendered in the matter Marico Ltd. v. Agro Tech Foods.

Marico, which uses the expressions “losorb” and “Lo-sorb” for its product Saffola and Sweekar, had filed the injunction application stating that it has coined the word and got the registration of it. However, the court held that the word was a common descriptive expression and while rejecting the appeal, held as under;

19. Our conclusion is that we have in fact totally failed to appreciate the argument as raised on behalf of the appellant. Surely, when rights are claimed over a word mark as a trademark and which word mark is in fact a mere tweak of a descriptive word indicative of the kind, quality, intended purpose or other characteristics of the goods, it is not open to urge that although the respondent is using the descriptive word mark in fact only as a part of sentence as a description (and even assuming for the sake of argument only the descriptive word mark in itself) alongwith another independent trademark, yet the use of descriptive words are to be injuncted against. How can it at all be argued that though the respondent is in fact shown to be using the disputed word(s) only with a descriptive intendment, yet, such use should be taken not in a descriptive manner but as a trademark. If we permit such an argument to prevail then what will happen is that what cannot be directly done will be indirectly done i.e., whereas the appellant is not entitled to succeed in the infringement action because the use by the respondent is in furtherance of its statutory rights of the user of the words which are descriptive of the kind, quality, intended purpose or characteristic of the goods, yet, merely because the appellant states that the respondent is using the same as a trademark, the same should be taken as infringement of the trademark of the appellant. Not only the plaintiff has no exclusive rights whatsoever to the trademarks because they are such which fall within the mischief of Section 30(2)(a), the respondent/defendant is always fully justified and entitled to use the descriptive words in any and every manner that it so chooses and pleases to do. If there are no rights of the plaintiff to exclusive user of the trademark then where does arise the question of disentitlement of a defendant to use the trademark of the appellant inasmuch as any person who adopts a descriptive word mark does so at its own peril in that any other person will also be fully entitled to use the same in view of a specific statutory rights thereto, and there are various other statutory rights including that under Section 30(2) (a), and which is what is being done by the respondent in the facts of the present case and its rights being further stronger because of the use alongwith the simultaneous use of its trademark "Sundrop". In the facts and circumstances of the present case, Section 30(2)(a) clearly applies in entitling the respondent to use the expression "WITH LOW ABSORB TECHNOLOGY" because that is only a descriptive use by normal English words in the English language indicative of the kind, quality, intended purpose of characteristic of the goods. There is no use of the expression "bonafide" in Section 30(2)(a) as is found in Section 35, and we do not propose to import in Section 30(2)(a) the expression "bonafide" because the subject matters of the two Sections i.e. Section 32(a) and Section 35 are though common on certain limited aspects, however the two sections do in fact operate in separate fields. Also looking at the issue in another way, "bonafide" aspect can in a way be said to be very much included in Section 30(2)(a) because the use of words which indicate their relation to the goods for the kind, quality, intended purpose or other characteristics etc. of the goods, is clearly only a bonafide user of the same and which "bonafideness" does not have to be additionally proved. In fact, there is ordinarily not only no lack of bonafides in using the normal descriptive word, and on the contrary there is in fact malafides of a plaintiff in adopting otherwise a descriptive word mark and for which adaption there is ordinarily an absolute ground for refusal of registration of the trademark. There is no malafides of the respondent as alleged by the appellant because the respondent is using the expression "LOW ABSORB" as part of a sentence in a descriptive manner and the respondent is also prominently using its own trademark "Sundrop", an aspect we have repeatedly referred to otherwise in this judgment. Merely because the respondent used "TM" earlier after the expression "LOW ABSORB TECHNOLOGY" is not such as to wipe out statutory rights/defences of the respondent. We are also of the opinion that once the person, against whom a suit is filed on the ground of infringement of a trademark which is in fact a descriptive word, then, if a defendant is using his own word mark as a trademark prominently in addition to the descriptive word mark which the plaintiff claims to be his trademark, nothing further is required to show the bonafides of the defendant against whom infringement of a registered trademark is alleged. In the facts of the present case, we have already adverted to in detail the prominent use by the respondent of its independent trademark "Sundrop", and, the fact that the expression "LOW ABSORB" is being used only as part of the sentence which reads "WITH LOW ABSORB TECHNOLOGY".

20. We may however note that when two identical trademarks are used by two parties in the market, or that a use of a descriptive word by a defendant can be confused with the trademark of a plaintiff, then a Court is always entitled to ensure that such distinction is brought or conditions are imposed qua the two identical or deceptively similar trademarks by imposing such conditions of use on both or either of the parties so that a third vital/important stakeholder in these Intellectual Property Rights (IPR) disputes viz. the public, is not in any manner deceived/confused and whose rights are not prejudicially affected. This has been held by us in a recent judgment in Cadila Healthcare Ltd. Vs. Diat Foods (India) decided on 29.9.2010, in which this Court (speaking through Sanjay Kishan Kaul, J) has relied upon another Division Bench judgment of this Court in the case of Goenka Institute of Education and Research Vs. Anjani Kumar Goenka & Anr. AIR 2009 (Delhi) 139: 2009 (160) DLT 417 as also Section 12 of the Act and held the entitlement of a Court to issue directions to ensure that there is no confusion in the public with respect to two separate products which are sold under identical or deceptively similar trademarks. Of course, in this case of Cadila Healthcare Ltd. use by the respondent/defendant was not as a trademark but only in the descriptive sense, and yet, to avoid confusion to the public, directions were issued. Similar would be the entitlement of a Court afortiorari when two parties use same or deceptively similar descriptive word marks as trademarks.

CONCLUSIONS

21. The following conclusions thus emerge:-

(i) A mark which is sought to used as a trade mark, if, is one falling under Section 9(1)(a) to (c), then the same ordinarily ought not to be afforded protection as a trade mark.

(ii) Before the marks which fall under Section 9(1) (a) to (c) are given protection as a trade mark, the distinctiveness must of an undisturbed user of a very large/considerable number of years, with the emphasis being on discouragement on appropriation of such marks which fall under Section 9(1) (a) to (c).

(iii) A civil court in a suit filed for infringement of a registered trade mark is entitled (if there is no earlier judgment which has achieved finality in cancellation proceedings) to consider the validity of registration for the purpose of passing an interlocutory order including of grant or refusal of an interim injunction- once the objection as to invalidity of registration is taken up in the pleading/written statement. 

(iv) A trademark which falls under Section 9(1) (a) to (c) cannot be registered on proposed to be used basis. Evidence on distinctiveness with respect to trade marks falling under Section 9(1) (a) to (c) should be the evidence of user evidencing distinctiveness as on the date of application for registration or at the best of evidence up to the date of registration.

(v) In infringement actions the court is entitled to consider the evidence of distinctiveness up to the date of registration for the purpose of passing any interlocutory order and not evidence showing distinctiveness post registration. However, in cancellation proceedings evidence of distinctiveness post registration of the trade mark can also be considered.

(vi) Even if there is finality to registration of a trade mark, yet the defendant in infringement action can take statutory defences under Sections 30 to 35 to defeat the infringement action.

22. In view of the above, we find that the appeal is not liable to succeed. The appellant does not have a prima facie case in its favour in view of the above discussion. The balance of convenience is in favour of the respondent who will be caused grave and irreparable injury if the injunction as prayed for is granted. The law is that as an appellate Court we should not interfere with the well reasoned judgment of learned Single Judge in terms of Skyline Education Institute (India) Private Limited Vs. S.L. Vaswani and Another (2010) 2 SCC 142. The appeal is therefore dismissed. We may state that ordinarily being a commercial matter where giant companies can afford to pay costs we would have imposed actual costs on the appellant, however, we desist from doing so because there is no authoritative pronouncement of a Division Bench of this Court on certain aspects we have dealt with in this judgment including with respect to an entitlement of a plaintiff to an infringement action with respect to a descriptive word trademark and related word marks which are otherwise such for which there is an absolute ground for refusal of registration.