This article was written by Prabhakar Acharya, pursuing the Training program on Using AI for Business Growth Course from Skill Arbitrage, and edited by Koushik Chittella
Table of Contents
Introduction
Supply Chain Management (SCM) gained prominence as a key business concept in the late 1990s through different articles and books written by experts, professionals, and academicians. SCM is defined as the process of the broad range of activities required to plan, organise, implement, control, and manage the operations of a supply chain by executing the flow of goods and services within a supply chain involving raw material movement, its storage, handling work-in-progress inventory, and finally delivering finished products to customers. The goal is to carry out these activities in a streamlined, environmentally friendly, and cost-effective way, with the ultimate aim of satisfying customer requirements efficiently and effectively to the extent possible.
Supply Chain Management is the initial flow of information culminating in the flow of goods & services in an environmentally friendly and cost-effective manner, leading to ultimate customer satisfaction. SCM is the management of supply chain activities to gain customer value and achieve sustainable competitive advantage to optimise effectiveness and efficiency. This comprehensive process covers all aspects & coordinates from product development and sourcing to production and logistics, besides information systems. Organisations within a supply chain are interlinked through both physical and information flows, working jointly to achieve these goals. In sophisticated supply chain systems, the residual value of used products and packaging may re-enter the supply chain where their remaining value is recyclable. Supply Chain Management draws heavily on principles from procurement, operations management, logistics, and information technology, striving for a cohesive, integrated approach.
The 21st century has witnessed significant changes in the business environment that have influenced the evolution of supply chain networks. The foremost being the rise of globalisation, along with the growth of multinational companies, mergers, acquisitions, strategic alliances, joint ventures, and business partnerships, has significant key success factors enhancing previous practices like lean manufacturing, agile manufacturing, and just-in-time. Further, technological development, particularly the significant reduction in communication costs (a part of transaction costs), has led to amplified changes in active coordination among members of supply chain networks.
Methods to reduce expenses in the supply chain
Following are the three strategies to reduce supply chain expenses through sustained relationships without critically impacting your suppliers:
Avoid redundancies: Start by mapping out all activities across your supply chain partners associated with procurement, inspection, storage, production, and transportation logistics of materials and components that constitute the WIP & finished product. On close observation, one would find that some tasks are duplicated & repeated by different supply chain partners; for example, one partner conducting an outgoing inspection followed by an incoming inspection by another. By cooperating with your partners to eliminate these redundancies, one can reduce the time and costs, which in turn culminates in lowering the overall price.
Assigning tasks to an optimal supply chain partner: Very often, the supply chain partner’s capabilities overlap. For example, in the case of a customer purchasing embossed metal articles OR sheets, both the immediate supplier and their supplier may offer embossing services. The task should be assigned to the partner who can do it most effectively, subject to meeting the necessary required quality, delivery schedules, and service standards. This requires rethinking about traditional processes to adopt the most efficient approach so that one can do it in the best benchmarked way.
Leverage the supply chain’s buying power: Frequently, the products and services procured by second-tier suppliers are also purchased by first-tier suppliers, who presumably get better pricing. In such cases, the first-tier supplier can very well negotiate to include the second-tier suppliers’ volume in their requirement to secure even better discounts. This approach helps in trimming total costs across the entire supply chain network.
Optimisation of supply chain
Very often, when establishing sourcing, one may encounter complexities and constraints that make supplier selection challenging. Constraints are hindrances that restrict your choices, an example being:
One may be required to select two suppliers instead of just one to mitigate the risk of a shortfall in supplies.
Suppliers don’t possess the capacity to handle & provide 100% of one’s business requirements.
One might need to allocate a certain percentage of requirement orders to diversified suppliers. Further complexities, which can add challenges, can be to manage a large number of line items bid offered.
Vendors are offering attractive discounts for different volume levels OR for select combinations of line items.
Varied delivery locations with varying suitability of certain vendors to supply.
Selecting between freight lanes with different costs.
It becomes challenging to ascertain the best vendor selection when faced with multiple constraints and complexities. Under such situations to address this, purchasing departments use supply chain optimisation technology to justify their decision. The supply chain optimisation technology applies advanced mathematical techniques to analyse & evaluate a sourcing scenario to decide & establish the optimal distribution of awards. It helps purchasing departments make the best decision to benchmark among multiple possible alternatives.
Promoting competition, organisations invite multiple capable bidders/vendors to overcome constraints and complexities, leveraging a number of overwhelming potential alternatives & combinations, thus increasing the likelihood of making a suboptimal decision. Although it’s possible to manually analyse bids, supply chain optimisation technology can save time and money and reduce errors, thus making it a valuable tool for handling complex sourcing strategies.
However, for every organisation or spending category, supply chain optimisation technology may not be suitable. It is effective when used to source high-value core commodities, parts, and materials that have capacity constraints, related risks, and competitive vendors.
Since supply chain optimisation technology requires a major investment, it is typically implemented by larger organisations, which can achieve a significant return on investment due to their high spend volume. Smaller organisations or those dealing with simplistic & uncomplicated spending categories may find that the costs of implementing supply chain optimisation technology surpass the benefits.
Lean supply chain management
The lean principle in supply chain management (SCM) is associated with the elimination of waste in all forms. Waste is defined as an activity that does not add value from the customer’s perspective to the delivered product or service. The waste as identified prevails in unnecessary inventory, overproduction, excess processing, waiting times, inefficient transportation, excessive motion or handling, and defects.
The lean principle can be applied to all three flows within an organisation: i.e., information flow, materials (products, services) flow, and cash flow. For survival & generating revenue, an organisation looks at the sales department, whereas for maximising profits, it looks at materials management. Lean Supply Chain Management is a philosophy that champions waste reduction and process simplification. It’s a systematic approach to streamline both material and information flow, ensuring responsive and cost-effective supply chain networks. This approach necessitates close collaboration between vendors, manufacturers, distributors, and customers. By working together closely rather than operating as separate entities, organisations can streamline processes, minimise waste, and improve overall delivery of value to customers.
INPUT (MONEY) X
OUTPUT(MONEY)X + Y Max
TRANSFORMATION PROCESS (PLANT + MACHINES + EMPLOYEES + MATERIALS + METHODS). TIME BEING COMMON RESOURCE.PROCESS (PLANT+MACHINES+EMPLOYEES + MATERIALS + METHODS)RMATIONPROCESS (PLANT+MACHINES+EMPLOYEES + MATERIALS + METHODS)
The Lean and Six Sigma methodologies combined together are effective exclusively for optimising supply chains. This approach brings together specifically a unified focus on two essential aspects of manufacturing: efficiency and quality.
The 5 principles of lean management
Identify Value: Understand & determine what the customer values and focus on creating that value.
Value Stream Mapping: Verify, analyse, and map out all steps in the process to identify and eliminate waste.
Develop continuous workflows: Ensure that SOP is in place & production processes flow smoothly and without interruptions.
Create a Pull System: Produce only what & when it is needed to reduce excess inventory and overproduction.
Seek Perfection with Continuous Improvement: Strive for on-going enhancements in all processes to eliminate waste and increase value.
These lean management principles are universally accepted tools to reinforce & strengthen overall company performance. They are relevant in various businesses and production processes, such as lean manufacturing and lean software development, where the intent is on reducing waste, streamlining operations, and improving quality. Combining Lean with Six Sigma further enhances this approach by not only eliminating waste but also reducing variability and defects, resulting in a more efficient and higher-quality supply chain. On average, product costing typically breaks down as follows:
Materials: 60%–70% of the product cost.
Labour: 20%–30% of the product cost.
Profit: 10%–20% of the product cost.
Indeed, automobile manufacturers are one of the examples that have implemented a “just-in-time inventory system” to reduce waste and improve efficiency. Another example of effective supply chain management is a business that has automated its procurement process to reduce costs & improve vendor communication. The Toyota Motor Company is renowned for its implementation of the Just-In-Time (JIT) inventory system, lean manufacturing, & continuous improvement, which significantly reduces waste and enhances efficiency by producing only what & when it is needed. This approach minimises excess inventory and associated costs, allowing for a more streamlined and responsive supply chain.
By leveraging automation, the company can reduce costs, streamline operations, and improve communication with vendors, leading to more efficient procurement and better vendor-supplier relationships.
5% REDUCTION IN MATERIALS COST RESULTS IN 30% INCREASE IN RETURN ON INVESTMENT (ROI).
SALES Rs. 5000/-
LABOUR Rs. 700/-
RS IN LAKHS
PROFIT Rs. 400/-
(MINUS)
PROFIT MARGIN 8%
PRODUCTION COST Rs. 3800/-
MATERIALS Rs. 2300/-
SALES Rs. 5000/-
MARKETING EXPENSES Rs. 800/-
OVERHEAD Rs. 800/-
DIVIDED BY
( (10.3%)
RETURN ON INVESTMENT (ROI) 10.0%
MULTIPLY
INVENTORY Rs. 500/-
SALES Rs. 5000/-
CURRENT ASSETS Rs. 1100/-
(13.0%)
ASSET TURNOVER RATE 1.25
BILLS RECEIVABLES Rs. 300/-
DIVIDED BY
TOTAL ASSETS Rs. 4000/-
PLUS (1.26)
FIXED ASSETS Rs. 2900/-
CASH Rs. 300/-
LEAN SCM – ILLUSTRATION:
TRANSFORMATION PROCESS ( MATERIALS ). PROCESS (PLANT+MACHINES+EMPLOYEES + MATERIALS + METHODS)RMATIONPROCESS (PLANT+MACHINES+EMPLOYEES + MATERIALS + METHODS)
INPUT (MONEY) X
OUTPUT(MONEY)X + Y Max
· HOW FAST
· HOW EFFICIENT
A petty street vendor borrows rupees 10,000/- (ten thousand only) from a money lender at an extreme 24% interest rate as no bank was willing to lend him money. Also, due to severe competition in the market, the vendor cannot think of a profit more than 10% (ten percent) margin. Even with such a restriction, the street smart vendor could make a comfortable profit. HOW IS IT?
If the inventory turnover ratio is one year, the street vendor earns Rs. 11,000/- only, whereas he has to repay Rs. 12,400/- including interest, there being a loss of Rs. 1400/- during the year. Earns Rs. 11000/- during the year, there being a LOSS of Rs. 1400/- against the loan to repay. However, if the inventory turnover ratio (cycle time) is at an interval of (2) months, the street vendor earns Rs. 11,000/- repayment being Rs. 10,400/- including interest, there being a profit of Rs. 600/- in one cycle of two months, thus against (6) cycles the profits would be Rs. 600 x 6 (cycles) = Rs. 3600/- annually. If the inventory turnover ratio (cycle times) is at an interval of (2) months, the PROFIT is Rs. 600/-.
Disadvantages of Poor Supply Chain Management
Factors like responding to uncertain weather conditions, poor inventory management, the inability to predict demand, and poor 3PL/5PL management & compliance trigger a series of uncertainties and inefficiencies across a supply chain. This creates a domino effect, adversely impacting the core aspects of a supply chain of businesses.
Every business needs frameworks and systems in place to enable them to progress & succeed each day and thrive for perennial long-term achievement and sustainability. Businesses face crucial challenges in their supply chains where issues like inadequate inventory mismanagement, unreliable suppliers, increasing logistics costs, prolonged production cycles, non-compliances, poor customer experience, and transportation delays can create a ripple effect leading to inefficiency and higher costs. Factors like responding to uncertain weather conditions, inefficient inventory management, inability to forecast demand, & imperfect 3PL/5PL management result in a series of uncertainties, impacting the supply chain network of businesses. However, following are the ways for companies to address challenges; by adopting these strategies, businesses can mitigate risks of supply chain disruptions, resulting in efficient operations and long-term success:
Effective Inventory Management:
Automated procurement process & restocking: Use real-time data to automatically manage stock levels, reducing the risk of running out or overstocking items.
Inventory Control Techniques: Implementing systems like Just-in-Time (JIT) to keep inventory at the right levels, ABC, FSN, XYZ analysis, minimising holding costs, and ensuring availability.
Reinforce Supplier Relationship Management (SRM):
Supplier Diversification: Work with multiple suppliers to reduce the risk of disruption if one fails to deliver.
Collaboration with Suppliers: Build strong, perennial communicative relationships with suppliers, using tools to monitor performance and align objectives.
Better Demand Forecasting:
Data-Driven Analytics: Use big data and machine learning to forecast customer demand more accurately, helping businesses stay ahead of market fluctuations.
Collaborative Planning: Work closely with supply chain network partners to share insights and create more accurate forecasts.
Streamlined Transportation:
Transportation Management Systems (TMS): Use software to lower costs, optimise delivery routes, and track performance in real-time.
Effective Management of Logistics Partners: choose and manage logistics providers prudently to ensure they meet service expectations.
Risk Management and Compliance:
Risk Assessment: Assess potential risks periodically, like weather disruptions or supplier issues, and always have contingency plans.
Compliance Monitoring: Be familiar with and up to date with regulations to ensure that supply chain meets necessary standards and avoids penalties.
Enhanced Communication and Collaboration:
Integrated Platforms: Use tools that enable real-time communication across the supply chain, from suppliers to intermediaries and customers.
Regular Meetings: Foster regular communication among all parties involved to quickly address and resolve issues.
The efficiency levels of a supply chain have the power to make or break businesses. Businesses manage their supply chain by two of the most important competitive differentiators: price and customer experience.
An inefficiently managed supply chain can lead to significant costs for a business and can adversely impact a company, as stated below:
Mismanaged Implementation:
To upgrade & change supply chain management, systems require financial resources, valuable time, and the energy of human resources. If not implemented properly, there will be wasted labour, service redundancy, and missed deadlines, which can be costly.
To prevent these issues, top logistics providers conduct thorough analysis before making changes. They ensure to fully survey, understand & identify consolidation opportunities, assess the client’s shipping schedule, and evaluate last-mile delivery needs to ensure the new system is effective and efficient.
Inadequate Training:
Integrating a new system into an existing supply chain often requires restructuring and training team members & is a complex process. Without careful planning and flawless, transparent communication, the process can lead to costly errors and increased employee turnover.
When selecting logistics providers, it’s essential to ask about their ease of use of their technology and training process. A skilled provider should offer a well-defined onboarding training or transition process that can be customised to fit unique teams and timelines.
Attitude & Mentality:
Shortsighted logistics providers who are only focused on getting the contract miss out on opportunities to optimise the supply chain for their clients. While initial savings might be realised, there is every possibility to lose potential long-term savings and growth opportunities.
Industry-leading logistics providers focus on persistent ways to reduce costs and enhance efficiency for their clients. In order to avoid falling behind their peers, a forward-thinking approach helps businesses sustain one’s supply chain, and businesses can stay ahead in a competitive market and scale higher levels of success than ever before.
A company that excels in supply chain management understands how to address these challenges to avoid the adverse consequences that may arise. Effective supply chain management not only reduces costs but also ensures that resources are utilised efficiently and effectively to their optimum level. By focusing on strong management, cost reduction, and risk mitigation, a business can maintain a competitive edge and achieve greater success.
For companies with complex supply chains, partnering with a supply chain management provider can be particularly advantageous. Such providers help streamline daily seamless operations and take stress off their administrative support teams. While some disruptions are not under our control, most of them can be managed using modern integrated technologies.
Challenges and limitations
Today, SCM challenges faced by companies are as follows:
Ignoring continued growth of e-commerce, a channel for the industrial sector: As e-commerce continues to expand, especially in the industrial sector, companies that fail to adapt may miss significant opportunities. Ignoring this channel can hinder growth and competitiveness.
Least attention to potential risks: The volatile transportation costs and commitment to delivery lead times pose substantial risks. Companies that do not manage these risks would face increased costs and compromised service levels.
Dependency on past performance to forecast sales in the future: Using past performance to forecast sales can be unreliable, especially in dynamic markets. This approach may lead to inaccurate forecasts, resulting in either excess inventory or stockouts.
Lack of in-depth understanding of the full capacity of suppliers & service providers: A lack of insight into the full capabilities of suppliers, vendors, and service providers can lead to inefficiencies and missed opportunities for optimal supply chain network utilisation.
Waiting for SCM technology to fix everything holistically by minimising the complexity of supply chain activities & eliminating the introduction of unnecessary technology: While technology can streamline supply chain activities, relying on it to solve all issues without considering the complexity of operations can lead to oversimplification and missed opportunities for improvement.
Though tightly controlled inventory and just-in-time (JIT) manufacturing can reduce costs, they can also leave a company vulnerable if any part of the supply chain fails. The downsides include potential delays, stockouts, and an inability to respond to sudden demand spikes. However, in stable environments with predictable demand, a lean supply chain can be highly effective. In terms of internationalisation and market expansion, supply chain management faces additional challenges. One major issue is the governance gap, where insufficient regulation of corporate activities abroad can lead to human rights violations in supply chains, with companies not held accountable.
Supply chain management is inherently complex, involving numerous stakeholders like suppliers, carriers, producers, information systems managers, logistics managers, and customers. A supply chain manager’s role is to coordinate the routing of goods, manage inventory, and optimise overall operations, ensuring that the supply chain runs smoothly and efficiently.
Benefits of lean supply management
The benefits of lean supply chain management are significant, which include
Reduced Costs: By eliminating waste and optimising processes, companies can significantly reduce overall operational costs.
Improved Communication and Coordination: Lean practices enhance collaboration across the supply chain, leading to better transparent, seamless communication and coordination among all stakeholders.
Increased Efficiency: Streamlining processes and reducing unnecessary steps & activities results in more efficient operations.
Improved Customer Satisfaction: Faster, more trusted, reliable deliveries and better-quality products lead to higher customer satisfaction.
Environmental Benefits: Lean practices often lead to reduced energy consumption in an environmentally friendly atmosphere.
Conclusion
Lean Supply Chain Management (SCM) plays a crucial role in helping organisations achieve higher profitability by enabling faster, more efficient turnover of investments and the most efficient transformation process. While lean principles focus on reducing waste and optimising processes, leading to quicker turnover times and more efficient operations. One of the greatest examples is Toyota Motor Company’s approach to lean supply chain management; it is so effective that they measure turnover in hours rather than months or years, setting them apart from many other organisations. The concept of lean manufacturing and continuous improvement is ingrained deeply in its company culture. The supply chain management in terms of internalisation and market expansion faces several limitations. One of the major limitations is the lack of governance and regulation of corporate activity abroad, which leads to a governance gap.
LEAN, As everybody’s interest is to maintain their body slim and trim without flab, so also every organisation is realising that if they have to be competitive in the market, they have to be lean without flab. Here the word “flab” stands for all kinds of wastes existing in the organisation.
Organisations strive to be lean by eliminating waste (referred to as “Muda,” a Japanese term in lean terminology). Muda represents any activity that consumes time and resources but does not add value to the customer, whether internal or external. It is important to understand that lean is not a quick fix for a management problem but a philosophy, just like yoga, continuously to be practiced in an organisation in conquering the waste (muda). By consistently applying lean principles, organisations can effectively minimise waste and enhance their overall performance.
This article is written by Shreya Patel. This article explains the trade mark opposition process in India along with Section 21 of Trade Marks Act. This article also discusses the different stages of trade mark opposition, along with landmark case laws.
Table of Contents
Introduction
Trademarking your brand is a crucial milestone for a successful business. One of the vital steps in the trade mark registration is trade mark opposition. A company has applied for a trade mark registration to protect its brand. But what happens if any third party opposes your trade mark application?
It is significant to understand the trade mark opposition process for all parties, whether you are an owner of the brand who is filing for their own trade mark or a third party concerned with any application. Trade mark opposition is a method used by third parties who are concerned with a trade mark application. Any person can oppose a trade mark registration if they have valid reasons.
In this article, we will discuss the procedure of trade mark opposition, the grounds on which a trade mark application can be opposed, all the important forms and fees which are required to be filed at different stages, along with landmark judgements that show the significance of filing a trade mark under the prescribed time limits, among other aspects.
Importance of trade mark opposition
The Trade Marks Act, 1999 (hereinafter referred to as ‘the Act’) provides the provision for trade mark opposition in India. Section 21 of the Act explains the trade mark opposition and its related information. The Trade Mark Rules, 2017(hereinafter referred to as ‘the Rules’) also consists of rules which are followed at the time of trade mark opposition. The Act and Rules together provide all information which is required by both the applicant and the third parties opposing a trade mark application on what all steps they can take along with timelines that they have to follow.
Let’s understand the importance of trade mark opposition before we move forward with the process of trade mark opposition.
Trade mark opposition is very important as it protects the consumers in the society by preventing a trade mark from being registered, which can create confusion in the minds of the consumers between 2 or more brands. Trade mark opposition also prevents similar trade mark registrations, which can lead to unfair advantages from a registered trade mark.
The process of opposing a trade mark comes earlier and before the trade mark is registered in finality, which helps in resolving the conflicts in the earlier stages and minimises the risks of legal disputes after the registration has been done of a trade mark. Trade mark opposition also ensures that only the marks which deserve protection are registered and facilitates public participation as trade mark registration can be opposed by any party. The parties opposing the trade mark did not need to have any type of personal or commercial interest in the trade mark which is being registered.
Trade mark opposition
The trade mark application filling and its examination is only one of the first stages in the entire trade mark registration process. After the trade mark application is examined by the Registrar and accepted from this end, the application for the registration is advertised in the Trade Mark Journal. The application is now open to the public to be opposed if any third party feels that the said mark is either similar to an existing mark in the market or infringes the rights of other trade marks. The aim of opposing a trade mark application is to protect the party who feels that registering such a mark can lead to confusion in the mind of consumers as both the marks are either deliberately similar or identical in nature.
There are many reasons for opposing a trade mark registration in India. Let’s take a look at these reasons!
What are the grounds for trade mark opposition
There are various grounds (Section 9 and 11) on which a trade mark registration can be opposed, like –
A trade mark registration can be opposed if the mark is very similar to a registered trade mark.
A mark which is similar or identical and is already published in the Trade Mark Journal can also be opposed.
A trade mark registration can be opposed if the mark does not have distinctiveness.
A mark can also be opposed if the mark is descriptive in nature, which means the symbol or the word mark itself shows the key characteristics of the goods or services along with their quality.
A trade mark can also be opposed if it is contrary to any laws in India or is prevented by any laws.
If the trade mark seems to be hurting any religious sentiment of any segment in India, then also such parties can file for trade mark registration opposition.
When a very similar trade mark is being registered, which is not in good faith, it can also be opposed by the parties who feel that their rights are being infringed.
Clause-wise explanation of Section 21 of Trade Marks Act
Section 21 explains all about the trade mark opposition process. Trade mark opposition is one of the most significant stages in the trade mark registration process in India. The stage of trade mark opposition comes after the trade mark application is advertised in the Trade Marks Journal. This Section talks about the entire opposition process along with important timelines that are to be followed by all the parties involved in the opposition.
Let’s examine all the sub-sections individually and explore the intended implications.
Section 21(1) of Trade Marks Act, 1999
This sub-section states that any person can oppose a trade mark registration within four months from the date when such trade mark application is advertised or re-advertised in the Trade Mark Journal. In the case of Prem N. Mayor And Ors. vs. Registrar Of Trade Marks And Ors. (1968), the Calcutta High Court set the principles in relation to the opposition process. It was argued by the counsel on behalf of the Registrar that the appellant cannot object to the trade mark registration as he is not the owner of the registered trade mark.
It was pointed out by the appellant that Section 21 of the Trade and Merchandise Marks Act 1958 specifically mentioned that ‘any person can object to the trade mark registration.’ This case explained that ‘any person’ means not only a prior registered trade mark owner, but will also include any member of society who is likely to get confused or a client who is related to a party involved with a similar trade mark. There are no fixed criteria as to who can oppose an application of a trade mark. The Trade Mark Registrar will only consider the merits of the case and not the party that has filed the trade mark opposition.
This opposition has to be in writing and as per the manner prescribed by the Registry, along with a payment of certain fees as specified by the Trade Mark Office. This sub-section provides the most important element of trade mark opposition, which is the time limit to file such opposition. Like every other step in trade mark registration, if any third party wants to oppose the registration of a trade mark they have to pay a fee for the same and the notice must be in writing.
Section 21(2) of Trade Marks Act, 1999
This sub-section states that a copy of the notice of opposition is to be sent by the Registrar to the applicant of the trade mark which is being opposed by a third party. The applicant shall reply to the notice of opposition within 2 months from receiving it.The applicant has to send the counter-statement on the grounds on which his application relies. If the applicant fails to send a reply to the notice of opposition within the prescribed time, then such an application for the registration is considered abandoned by the applicant.
Section 21(3) of Trade Marks Act, 1999
This sub-section states that when a reply to a notice of opposition is sent, the Registrar will then send the same to the party opposing the trade mark registration.
Section 21(4) of Trade Marks Act, 1999
The evidence is supposed to be included at the time of sending a notice of opposition and also at the time of replying to such notice. This sub-section states that all the evidence that is provided by the opposing party and the applicants is to be filed in the manner prescribed by the Registrar within the time period given by him to both parties. The opportunity to be heard shall also be provided by the Registrar to both the parties if necessary.
Section 21(5) of Trade Marks Act, 1999
This sub-section states the Registrar, after listening to both sides and also after reviewing the evidence submitted by them, decides whether the registration of the trade mark should take place or not. The Registrar also decides, if necessary, whether some limitations or special conditions should be there or not. The Registrar can also take into consideration the other reasons to reject trade mark registration, even if the same is not mentioned by the opponent.
Section 21(6) of Trade Marks Act, 1999
When a party which is opposing the trade mark application is not doing business or living in India, this sub-section states that such a party has to be asked by the Registrar to provide a security deposit in order to cover all the legal costs. In the case where such security deposit is not paid, the Registrar can treat the application or the opposition as abandoned.
Section 21(7) of Trade Marks Act, 1999
The sub-section provides the permission to make any amendment or correction in case of error in the counter-statement or the notice of opposition, if the Registrar permits the same.
Let’s now explore the trade mark opposition process in detail.
Breakdown of trade mark opposition
Trade mark opposition notice
A trade mark opposition can be filed by any person within four months from the date on which such registration application has been accepted and advertised in the Trade Mark Journal in India. The registration application is opposed when a party feels that any identical or distinctively similar trade mark already exists in the market or is in the process of registration.
Notice of opposition
The notice of opposition is to be given by filing the Form TM-O the form can be filed either physically or online. The fees for the TM-O form is:
Amount
Type of filing
₹ 3000
Physical
₹ 27000
Online
Rule 43 of the Rules states all the key requirements that are to be included in the TM-O form. The form shall include:
The details of the application which is being opposed
The number of the application
The goods or services which are being opposed
Applicant’s name
All the details of the mark or the right which is being infringed with the current trade mark registration.
If the registration of a trade mark is being opposed on the basis of an earlier existing trade mark then indication of use and the effect.
The filing date and the application number of the earlier trade mark
If the opposition is based on the well-known trade mark, then the details of that well-known mark.
The details of the opposing party, like the name and address of the owner, proof of ownership of trade mark, address of the principal place of business.
The opposition grounds on which the opposition is filed.
The notice of opposition is to be signed by the authorised agent. A single opposition notice can also be filed for different classes of trade mark and the fees for the same can be paid individually for each class as per Rule 42. After the notice of opposition is submitted to the Registrar Office the same goes through a formality check, after which a copy of the notice of opposition is sent to the applicant.
Notice of counter-statement
The applicant, on receiving a notice of opposition, has to file a reply, which is referred to as a counter-statement within two months from the date on which the same is received, as stated in Rule 44 of the Rules. The verification of the counter-statement has to be done in accordance with Rule 43. The reply to a notice of opposition by submitting a counter statement can be extended by one month.
Evidence under trade mark opposition
Evidence in support of opposition
Rule 45 of the Rules talks about the evidence which is supposed to be filed in support of the opposition. The opponent has to file the evidence using an affidavit within two months of the service of the counter-statement. The opponent can attach some evidence to back his notice of opposition by submitting the same to the Registrar along with writing to the applicant as well. These evidence can include sale invoices, advertising materials, packaging of the products, etc. which show the use of the trade mark. The opponent can also state in writing that he does not adduce evidence in support of the opposition but only relies on the facts which are included in the notice of opposition.
The opponent can also send copies of the evidence filed by him to the application and inform the Registrar of the same. If no evidence is submitted by the opponent, then the opposition can be considered abandoned.
Evidence in support of application
Rule 46 talks about the evidence in support of the application. After the evidence has been sent in support of the opposition under Rule 45, the applicant has to send the evidence in support of the application. The evidence can include documents that show the distinctiveness between the marks, proof of prior use if applicable, etc., which show how the trade mark is not opposing the registered trade mark. In this stage, the applicant has the option to waive this right and choose to submit the counter-statement alone.
Evidence in reply by opponent
After the evidence is submitted in support of the application, the opponent is again given a chance to submit the evidence in support of the opponent as per Rule 47. This rule is added in order to get a conclusion on the opposition procedure for ending the cycle of evidence submission by the parties again and again.
The Rule 48 also states that no evidence shall further be submitted, but if the Registrar thinks fit it can be allowed at the time of hearing.
Hearing of the case
After the evidence is submitted by both the applicant and the opposing party the hearing of the case takes place. The trade mark hearing is set by the Trade Mark Registrar and informed to both parties (Rule 50). If any of the parties are not able to attend the hearing due to any reasons they can submit the Form TM-M to adjourn the hearing at least three days before the date on which the hearing is scheduled to take place.
The hearing can be adjourned maximum for at least two times, which shall not be more than thirty days. The Registrar, after giving the opportunity to both parties to keep their point, takes the decision on whether the trade mark shall be registered or not.
Timeline of opposition process
Stage
Timeline
Filing of the notice of opposition
Within 4 months from the date on which the trade mark application is accepted and advertised in the Trade Mark JournalFor example: the trade mark application was advertised on 5-10-2024 then the time period of file opposition will be counted 4 months from 5-10-2024 – 5-02-2025.
Filing the notice of counter-statement
Counter-statement is to be filed within 2 months from the date on which the actual notice of opposition is received.
Submission of evidence
Within two months of serving notice of opposition and counter statement, where one-month extension is provided
Hearing
As per the Registrar, the same can be adjourned for two times but not for more than thirty days.
Landmark case laws on Section 21 of Trade Marks Act, 1999
This case is related to the interpretation of Section 21(2) of the Act and its application to notice of opposition receipt in the proceedings of trade mark.
Ramya S. Moorthy vs. Registrar Of Trade Marks (2023)
Facts of the case
This crucial judgement was delivered by the Madras High Court in August 2023. Ramya S. Moorthy had filed 2 applications for registration of trade marks, both under different trade mark classes. The applications were accepted by the Examiner, and the same were advertised in the Trade Mark Journal. Nirma Ltd. filed an opposition in the period of four months provided for opposing any trade mark application against these 2 applications.
The main dispute here in this case was in relation to notice of opposition’s delivery to the petitioner. The notice was electronically sent to the petitioner in January by the Trade Marks Registry. The petitioner stated that she did not receive any such notice. The petitioner was not able to file any counterstatement to the notice of opposition due to this. The time period to file such a counterstatement is two months, as mentioned in Section 21(2) of the Act. This led to impugned orders against the petitioner/applicant.
Issues
The main issue of the case is the interpretation of Section 21(2) of the Act, and whether the two-month time limit to file the counterstatements is to be counted from the date of actual receipt of opposition notice or from the date of dispatch of such opposition notice.
Analysis and judgement
The main question in this case was when to start the count of the 2-month time period given to file a counterstatement. It is clearly stated in Section 21(2) that the counter statement is to be filed by the applicant within two months from the receipt of the notice of opposition by the applicant. Rule 18(2) talks about the service by the email and deems the service to occur at the time of sending the email. It was pointed out that if the interpretation is done in a literal sense, then a conflict might arise in the language within Section 21(2) and the applicant’s rights can be in danger.
It was concluded by the court that the time period for counter statement filing will start from the date on which the actual email is received. The documents stating the successful transmission do not act as evidence of receipt by the petitioner.
The High Court of Madras quashed the orders given previously and the applicants for both the trade marks were advised to be remanded and reinstated by the Registrar to reconsider the same. The whole matter was to be re-evaluated by the Register and an opportunity to be heard was to be given to both parties.
The case provides a clarification on the time period during which the counter statement should be filed by the applicants when they have received a notice of opposition and from that date, such a two-month period will be started. This interpretation helps protect the rights of the trade mark applicants along with aligning the natural justice principle.
Parvesh Kamboj vs. The Controller General Of Patents, Designs and trade marks (2022)
Facts of the case
In the case of Parvesh Kamboj vs. The Controller General Of Patents, Designs and Trademarks (2022), four writ petitions were merged together by the High Court of Delhi. The writ petitions were filed under Article 226 (power of the High Courts to issue certain writs) and Article 227 (power of superintendence over all the courts by the High Court) of the Indian Constitution. The petitioners were not allowed to exercise their right under Section 21 of the Act, which is to file opposition against the trade marks which they feel infringe their rights.
The petitioners wanted to file for opposition of the trade mark using the extension of limitation which was granted in 2020 by the Supreme Court due to COVID-19. However, the same was not allowed. The petitioners believed that the Controller General of Patents, Designs and Trade Marks (CGPDTM) acted in a discriminatory and arbitrary way. The reason for not filing the opposition was that the oppositions were proposed to be filed beyond the period of limitation and the trade marks which the petitioners wanted to oppose were already granted registration and their certificate of registration was also given to them.
Aggrieved by such a decision of CGPDTM, the petitioners moved to the High Court of Delhi by filing the captioned writ petitions.
Issues of the case
The main issues of the case are:
Whether granting the registration along with issuing the certificate despite CGPDTM knowing that the intention of the petitioners to oppose the same beyond the limitation period was arbitrary in nature?
Whether the petitioners can file an opposition under Section 21 of the Act after the registration process has been completed and the certificate of registration is issued?
Analysis and judgement
It was argued by the petitioners that the Trade Mark Office was behaving arbitrarily by choosing to apply the order of the Supreme Court only to some opponents. The petitioners were not able to file the opposition during the four month time period given despite the extension given by the Supreme Court. The Registry did not consider the oppositions of the petitioners and issued the certificates to the proprietors. The court was later informed that during the time over four lakh registrations were granted, which raised concerns.
The officers of CGPDTM later informed the court that many oppositions were filed and accepted at the time of pandemic. The Delhi High Court voiced disappointment as they were not informed about the same earlier. It appeared to be a deliberate move which jeopardised the applicant’s rights.
The court held that the actions of the CGPDTM were unacceptable. The court allowed the petitioner to file the oppositions either offline or online, while the registration which had been granted by the Registry, was suspended by the court till the entire procedure gets over. A fine was imposed on the CGPDTM officials of ₹ 100,000 each and to deposit the same in a relief fund for the pandemic.
With the above case, we can understand how the applicants have the right to oppose and trade mark if they feel it infringes their rights. But the parties interested in filing for the opposition have to ensure that the notice of opposition is filed within the period of four months from the date on which it was accepted and advertised in the Trade Mark Journal.
Conclusion
After reading the entire article we can understand how important the entire procedure of trade mark opposition is. A trade mark opposition is filed when a third party feels that a similar or identical mark is already registered or infringes the rights of the mark which is currently in the registration process. A trade mark registration is only completed when the Registrar approves the same. If the Registrar favours the opposing party, then the trade mark registration might also get denied. It is very vital to follow the rules prescribed along with the timeline for the opposition procedure to ensure that the trade mark registration does not get abandoned.
Frequently Asked Questions (FAQs)
Who can file a trade mark opposition in India?
As per Section 21 of the Act, any person can file a trade mark opposition in India. The person can be a competitor working in the same field, consumers, or any other third party. In order to oppose the trade mark opposition the person does not need to have any personal or commercial interest in the trade mark.
What is the next step after the notice of opposition is sent to the applicant?
After the third party sends the notice of opposition, the applicant has to file a reply to the opposition application through a counter statement within two months.
What happens if the applicant does not reply to the notice of opposition?
If the trade mark applicant fails to reply to the notice of opposition within the prescribed time (2 months) then the opposition will be considered abandoned by the Registry.
Where should a third party file the opposition for a trade mark?
The trade mark opposition is to be filed at the Trade Mark Registry, where the application for trade mark was filed. It is vital to ensure that the opposition is filed in the correct jurisdiction.
How to resolve a trade mark opposition?
In order to resolve a trade mark opposition in India, the applicant can submit the counter statement along with all the evidence and documents, followed by a hearing. The final decision will be taken by the Registrar on whether to dismiss such marks or to register it based on the case prepared.
Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.
LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join:
This article is written by Janvi Badiyani, providing an in-depth examination of Section 17 of the Trade Marks Act, 1999. It offers a detailed analysis of the exclusive rights conferred on composite trade marks and relevant case laws to highlight the practical implications. Additionally, the article draws comparisons between Sections 17 and 15 of the Trade Marks Act, 1999, focussing on their respective roles in trade mark protection.
Table of Contents
Introduction
Trade mark registration is one of the most important branches of the intellectual property rights legislation that gives the owner an exclusive right to use the mark in connection with the goods and services for which it has been registered. The scope of protection can be complicated when a trade mark has several parts, like words, logos, or designs. Section 17 of the Trade Marks Act, 199(hereinafter referred to as TM Act), explains the consequences of registering only specific parts of such trade marks.
This section emphasises that the protection granted under the TM Act covers the entire mark as it is registered. If a trade mark is a composite mark, the rights extend to the mark in its combined form. However, it is essential to note that individual parts of the mark, if not registered separately, may not enjoy the same level of protection as the whole.
Section 17 also provides clarity in legal proceedings involving trade marks. It helps in determining the scope of protection and enforcement, ensuring that the registered trade mark is safeguarded against unauthorised use or infringement in its entirety. This comprehensive protection is crucial for trade mark owners as it maintains the distinctiveness and integrity of their marks in the marketplace.
Section 17 of Trade Marks Act, 1999: Effect of registration of parts of a mark
Protection of the different parts of a trade mark is relative to the part’s distinctiveness and whether they are separately registered or not. Section 17 of the TM Act, which deals with the consequence of registration of parts of a mark, clearly states that the registration of a composite mark gives protection as a whole, but the part of the whole mark is not protected unless it is separately capable of being distinguishable and registered.
This entails that for the protection of each element of a trade mark, the business needs to consider separate registrations separately, even if the business includes logos, slogans and badges, which are both crucial parts of a business. This is important because if the business files for protection of the composite trade mark, the logo and the tagline could be infringed by other companies.
In addition, it is important that enterprises know that mere words and designs that could be deemed obvious might not be protected by trade mark laws independently. However, when combined with other distinctive features, these elements can collectively create a unique composite mark, making it difficult for competitors to infringe upon it. Clause-wise explanation of Section 17
Section 17 of the TM Act deals with the impact of the registration of a trade mark, which includes various compartments. This section is crucial to consider to know to what extent a composite trade mark will be protected, that it can comprise words, design, logo or any other graphic distinctive sign. The following is a clause-wise analysis of Section 17.
Section 17(1) states that the rights given to trade marks must be protected from unauthorised use by others. As is the case in most countries around the world, these protections are essential. Section 17(1) of the TM Act gives the owner of a trade mark, composed of multiple elements, exclusive rights to its use. When a trade mark is registered, it protects the entire mark, including all its parts, such as the brand name, logo, or colours, rather than protecting each part separately. The main implication of these provisions is that the whole trade mark is protected from infringement by third parties through the exclusive right to use the mark.
This section is especially important for composite trade marks, which include several components that, when combined, make the trade mark. The registration of a composite mark means that it is prohibited that rivals employ a sign that is either similar to or the same as the mark registered under this act. The elaborate safeguarding approach ensures that any aspect of the mark cannot be used in a manner that creates confusion for consumers, thus protecting the uniqueness and prestige of the trade mark.
Legal redress can be sought against any third party that employs a mark that is similar to the whole registered trade mark by the owner of the composite trade mark. Justification for this protection is the need to maintain the brand’s credibility and prevent customers from being misled. Here, the court will consider the likelihood of confusion in the marketplace while assessing a mark’s similarity. The origin of the trade mark is protected, and competitors are prevented from using or diminishing its value under the protection provided by Section 17(1).
Section 17(2) provides special statuses for segments of the mark. This imposes significant limitations on the protective privileges, which a proprietor can exercise over parts of a compound mark. This provision aims to explain that if a trade mark includes several characteristics, only some of them are protected individually, and only these elements can have exclusive rights.
If a trade mark includes elements that are not individually registered, the owner cannot claim exclusive rights over those specific parts. Additionally, if the elements are generic or commonly used in the trade, the registration does not grant ownership rights over each individual component.
For instance, if a trade mark incorporates a figure as a logo and the name of a product as a word, then the word itself isn’t protected unless it is separately registered. This just goes to highlight the need for owners of composite trade marks to seek to register every part of the trade mark in order to gain wider legal protection.
Practical examples and application
Composite mark: It is a mark that combines words, numerals or any symbols with a figurative or literary device. For instance, a company wants to register a trade mark with the brand name ‘Fresh Fruit’ in which an apple along with the formation of a leaf has been illustrated. In particular, referring to Section 17(1), the company has the absolute rights to the whole trade mark.
As per Section 17(2), if a phrase like “Fresh Fruit” isn’t registered on its own, the trade mark owner can’t stop others from using it. Similarly, if the Parle logo was commonly used in the biscuit industry, Parle couldn’t claim exclusive rights unless it was distinctly registered.
Application in legal disputes: In legal disputes involving trade mark infringement, courts often assess the composite mark as a whole to determine whether there is a likelihood of confusion with another mark. This is crucial because even if the defendant uses only part of a registered trade mark, such as certain graphic or literal elements, it may not always amount to infringement. If those elements are common or generic within the industry, the court might conclude that there is no violation of the exclusive rights of the trade mark owner.
For instance, if the alleged infringing mark contains elements like shapes, colours, or phrases that are widely used by other businesses in the same field, the court may determine that those features cannot be exclusively protected by the original trade mark. Thus, partial use of a registered mark does not necessarily result in infringement unless it creates confusion or misleads consumers about the source of the goods or services. This approach maintains a balance between protecting trade mark owners’ rights and ensuring fair competition.
Implications and practical applications of Section 17 of Trade Marks Act, 1999
Section 17 of the Trade Marks Act, 1999 is highly effective to minimise confusion when dealing with complex or composite trade marks including words, logos, symbols, colours and taglines. As provided by Section 17, where a composite trade mark is registered, protection is afforded to the whole mark as one whole. Nonetheless, individual components of the mark are not protected unless they are distinguishable separately and the mark is separately registered.
This is especially the case with multimedia trade marks and now almost any modern branding, when companies use complex compositions of visual, text, and design elements. Section 17 creates a protection against the attempts of brand owners to monopolise some aspects of the product and prevent others from using similar elements, stating that they have to register every separate component. For instance, where a brand employs a logo and a slogan as constituent parts of a compound trade mark, one has to apply for registration of each part as a separate part so as to have legal recourse in their protection.
Other authorities have since reinforced the meanings of Section 17 as necessitated by new case law. The courts have firmly held an opinion that although registration of a composite trade mark gives a wide coverage, the limits of this protection do not include the non-distinctive or any unregistered portion of the mark. The trade mark owner must prove that its elements, like words, phrases, or symbols, have gained distinctiveness through use to qualify for separate registration and protection.
Comprehensive protection of Section 17 in trade mark law
For trade mark proprietors aiming for comprehensive protection of both a composite mark and its individual elements, the key legal provision is found under the Trade Marks Act. In the case of the composite trade mark, each of its components cannot be prevented unless, in its separate state, it takes a different form and is registered individually. This is important, especially for firms that employ multi-element trade marks consisting of logos, catchphrases, and colour combinations, among others, to create brand awareness. Yet, protection of these individual elements is subject to compliance with specific criteria for distinctiveness and separate registration.
Section 17 has practical applications for trade mark projection. For example, a business can register a trade mark that includes memorable graphic and informative slogans. While the company has exclusive rights to the combined mark, competitors could still use a similar descriptive tagline unless that tagline is separately registered and has gained secondary meaning.
For trade mark proprietors aiming for comprehensive protection of both a composite mark and its individual elements, the key legal provision is found under the Trade Marks Act. In the case of the composite trade mark, each of its components cannot be prevented unless, in its separate state, it takes a different form and is registered individually. This is important, especially for firms that employ multi-element trade marks consisting of logos, catchphrases, and colour combinations, among others, to create brand awareness. Yet, protection of these individual elements is subject to compliance with specific criteria for distinctiveness and separate registration.
Section 17 has practical applications for trade mark projection. For example, a business can register a trade mark that includes memorable graphic and informative slogans. While the company has exclusive rights to the combined mark, competitors could still use a similar descriptive tagline unless that tagline is separately registered and has gained secondary meaning.
Parts of a trade mark
A trade mark is valuable not only because it helps the public to easily distinguish a company’s products or services from those of competitors, but also because each individual component of the trade mark contributes to its uniqueness. The distinctiveness of these components enhances the overall value and recognition of the brand. This distinctive sign of a company may consist of words or logos, colours, shapes and sounds, and all these elements form the part of the trade mark. It is therefore very important to understand the role and the extent of protection that these individual parts will receive as one formulates their trade mark and legal policy.
Word marks: The most basic form of a trade mark is the word mark. This often encompasses the brand name or a popular tagline connected to a product or a service being advertised. Word marks are potent because, through the word, consumers are able to comprehend, recall, and identify with the mark.
A trade mark is more than just a name or logo; it represents a brand identity. Famous trade marks like Coca-Cola, Apple, or Nike have become synonymous with companies themselves. Word marks can be categorised based on how distinctive they are.
Arbitrary or fanciful marks: Both marks are unique trade marks that have no direct connection to the goods or services they represent. For example, “Apple” for computers and “Kodak” for cameras. Arbitrary marks use common words in unrelated contexts, while fanciful marks are entirely invented or made-up words. Both types are highly distinctive and offer strong protection under trade mark law.
Suggestive marks: marks suggest what sort of product or service is being promoted without announcing what it is. Unlike logo marks, these marks cannot be recognised easily without some level of thinking from the consumer linking the name to the particular product. For instance, although the term Netflix is an Internet-based service that broadcasts movies and shows, the term streaming is not connected to Netflix. Suggestive marks are identifiable and relevant enough as trade marks as they refer to an idea connected with commerce.
Descriptive marks: These marks identify or describe the characteristic of a product or a service and, in general, cannot be protected; this is the case only if it has become distinctive through use (e.g., Best Buy for an electronics retailer).
Generic Marks: Refer to general terms that describe the product or service being offered, making them ineligible for trade mark protection. For example, the term “computer” cannot be trade marked when used to brand a line of computers.
Logos and graphic elements: Logos can also go hand in hand with the concept of a trade mark. A logo is a graphic symbol or an emblem that is put to represent a brand integrated with a wordmark at the time of its use. Icons are important for visual differentiation, over time, ideas can evolve into iconic brand logos. For example, the TATA logo features a stylised “T,” Amul’s logo includes a red bold font, and Amul Girl is some of the most recognised logos worldwide. Logos can be categorised as follows:
Abstract : These logos incorporate graphics that are not related to the product but have been linked to it in one way or another (example: Nike’s running symbol).
Literal: These logos depict objects that are related to the product or service being sold (such as a picture of a camera for a photography and videography service).
Combination marks: These logos contain both word marks and graphic designs, and these offer total brand identity (for instance, the Starbucks logo with the mermaid figure alongside the brand name).
Colour schemes: Colours can play a role in branding and may become part of a trade mark when used consistently over time. When a combination of colours is employed in the marketing strategies or the product label and outermost packaging, then a distinctive trait of the brand emerges.
However, to register a colour mark is not an easy task for the brand owner because the brand owner has to demonstrate to an examiner that the colour has been associated with his product in the market. For instance, the purple colour used in Cadbury Dairy Milk is an identifiable trade mark in India.
Likewise, for the Asian Paints brand, this company relies on its staff to brand a particular colour, which has been a representation of the corporation in the paint industry. These colour marks have become descriptive but have assumed secondary meaning, meaning they can be protected trade marks.
It will also be important to note that colour marks are generally protected under the specific reference to the particular goods or services associated with the mark. For instance, Cadbury has sought to protect its shape and colour, a purple colour used in packing Cadbury chocolates, as a colour trade mark, which has attracted legal controversies as to whether colours can be regarded as trade marks.
Shapes and packaging (trade dress): Trade dress, namely, the outer appearance of a product or its container, can also be protected by a trade mark as long as such appearance is in the form of a shape that will not perform the product’s practical function. Trade dress is the term used to describe the appearance of a product and its immediate environment or container that a consumer is likely to associate with its producer.
The ones popular in India include Parachute coconut oil, which is packed in a blue tub, Bisleri water, packed in its own designed bottle; and Maggie packets’ colour combination-here, the red and yellow colour. Such images give the brand a clear visual affiliation of the product, the same way we see the Coke bottle shape or the emblematic shape of the Toblerone chocolate triangle.
For a shape or packaging to be protected by a trade mark, it must be distinctive as well as being a source identifier to users. It cannot be functional; that is, the shape or packing cannot be prerequisite to the functionality or use of the product, nor does it influence the price or quality of the product.
Sound marks: It is a less common but increasingly recognised type of trade mark. These are sounds tied to a brand or product, making them easily recognisable by consumers, like the jingling sound of the Titan wristwatch or the sound associated with HDFC Bank’s promotional advertisements. A sound mark must be distinctive and should not confuse consumers regarding the goods or services it represents
Sound marks are mostly registered in associations with words that describe sound, and this is normally accompanied by a graphical note (for example, music notation). The distinctiveness and connection between the sound and a product or a service is vital for getting trade mark protection.
Slogans: Slogans or taglines are short, catchy phrases, typically under a minimum number of words, created by a brand to convey its message. A slogan is an important part of a trade mark because it captures the brand’s identity or promise in just a few words. Examples include Tata Tea: “Jaago Re!” and MTR Foods: “Taste of Tradition,” all of which are registered trade marks.
It should be noted that trade marks, including slogans, must not be descriptive in order to be protected. They should not claim a common phrase used in the industry unless it has gained a unique meaning through widespread use over time.
Other non-traditional marks: Other than the above non-traditional elements of trade marks, there are smell marks, texture marks, and even motion marks. Such trade marks remain rather limited at present and may be difficult to obtain because, as mentioned above, the distinctiveness of slogans has to be proven according to strict criteria.
Smell marks: A smell characteristic of a product may be trade marked if it satisfies the two main qualifications of non-functionality and distinctiveness.
Texture marks: It refers to a trade mark that protects the distinct tactile feel of a product In India, currently, there is no registry for texture marks in the Indian trade mark system.
Motion marks: Motion marks are trade marks that incorporate moving elements, like the animated logo of Viacom 18.
Registration of parts of a trade mark
This means that at least a certain segment of a trade mark is registered separately to the other segments and/or with the other parts. This is applicable where there is the question as to whether an application for registration of a trade mark in its entirety is possible under Section 17 of the TM Act.
Composite mark : The trade mark that may be composite is actually a combination of word, logo, colour and design. Registration means that the mark is registered cumulatively as an entire entity; this means that the protection is accorded to the entire mark as a whole unit.
Effect of registration of parts
It is mentioned in the provisions of Section 17 of the TM Act that when the trade mark has been registered and it has more than one part, then the owner of such a registered trade mark does not have exclusive rights over the part thereof even when it is distinct unless and until it is registered otherwise. Therefore, in most cases, the above-mentioned exclusive right only applies where the combination as registered is involved.
Advantages of registering parts separately
This measure can be explained by the following benefits of registering the parts separately:
Greater protection: The trade mark owner can strengthen their protection by registering each part of the trade mark separately, including the term, logo, and even the slogan. Thus, the owner can protect themselves from competitors using the same elements, even if those elements may not represent the full brand name.
Flexibility in use: This means that having a trade mark registered in different parts gives more freedom in using certain elements. It can also prevent ownership claims on basic parts of the original trade mark. For example, a company can change or shorten its name or logo while still keeping the word mark.
Protection against imitation: Still, the rivals can attempt to use the individual parts of a popular composite mark. These issues can be avoided by registering each part separately.
Judicial interpretation: Courts interpret this section to mean that if protection is sought for individual parts of a composite trade mark, each part must be registered separately. The Indian Supreme Court has reaffirmed this in its various decisions and stated clearly that protection for part of the trade mark can only be sought if that part has been separately registered.
Case example: In S. Syed Mohideen vs. P. Sulochana Bai (2013), the Supreme Court of India clarified that a composite trade mark’s registration does not grant separate protection for any specific part unless each part is individually registered
Implications for trade mark strategy: There is an important issue that has emerged for companies to consider whether they should register the separate parts of a composite mark. This can be important to brands where certain individual brand elements may possess value in their own right.
While only registering the combination of features assures the registration of the appearance of the product and protection of the product, the option of registering each component separately is beneficial as it grants broader and more versatile legal protection. This can be significantly relevant for the preservation of a brand’s identity and its market worth, especially for the fields that suffer from blatant imitation and the power of advertising.
Interplay between Section 15 and Section 17
Section 15 and Section 17 of the TM Act are incorporated in many other facts regarding trade mark registration and the extent of the rights conferred on composite trade marks and their constituent parts. When a trade mark is registered, it is considered as a whole. Under Section 17 of the TM Act, if a trader wants exclusive rights to their trade mark, each distinct part of that trade mark must be registered separately.
Section 15 explains the impact of registering a composite mark. This means the different components of a trade mark can be protected individually. Taken together, all of these parts give an adequate direction in regard to specifying rights that are granted with registration as well as in regards to how protection might be given to certain components of a composite mark.
As explained in Section 15, for composite marks, the owner must apply for separate trade mark registration for each distinct feature that forms part of the mark. If this is not done, even if the trade mark as a whole is registered, the owner cannot assert exclusive rights over any individual component unless it has been separately registered.
Section 17 indicates that registering a trade mark in its entirety protects the composite mark as a whole but does not extend protection to any individual parts unless they have acquired distinctiveness or are registered separately. According to this Section, protection is afforded to the whole of the trade mark, and hence, any weak or mere directory element that constitutes the composite mark cannot be protected unless such element is registered otherwise under Section 15.
In trade mark strategy. Section 15 allows for the separate registration of components of a composite mark to ensure full protection. Meanwhile, Section 17 states that if the non-distinctive or common parts are not registered separately, the exclusive rights of the composite mark will not cover those ordinary parts.
This interaction demonstrates why it is so important to consider whether certain elements of a trade mark ought to be registered in isolation to ensure that the legal strength and effectiveness of any enforcement strategy are maximised.
Aspect
Section 15
Section 17
Primary focus
Provides for the option to register parts of a composite trade mark separately.
Addresses the effect of registering a composite trade mark as a whole.
Registration scope
Allows for the registration of individual elements of a composite mark.
Confers rights on the entire composite mark, not its unregistered parts.
Exclusive rights
Grants exclusive rights to each separately registered part.
Limits exclusive rights to the whole mark unless parts are separately registered.
Application of rights
Rights can be enforced independently for each registered element.
Rights apply to the overall impression of the composite mark, not its parts.
Protection of non-distinctive parts
Enables protection if the parts are registered separately.
No exclusive rights over non-distinctive or common elements unless registered.
Strategic importance
Essential for securing broad protection of key brand elements.
Highlights the necessity of registering important elements individually.
Legal enforcement
Easier to enforce rights against infringement of individual parts.
Infringement cases focus on the composite mark as a whole.
Anti-dissection Rule
The anti-dissection rule, which is based on Sections 15 and 17 of The TM Act, emphasises evaluating a trade mark as a whole rather than breaking it down into individual parts.
Section 15 deals with the registration of parts of trade marks and trade marks as a series. It allows a trade mark owner to register the whole trade mark and its individual parts separately if they claim exclusive rights to those parts. Each part must meet the conditions of an independent trade mark.
Section 17 focuses on the effect of registering parts of a trade mark. It states that when a trade mark includes multiple elements, the owner gets the exclusive right to use the entire trade mark as a whole. If any part of the trade mark is not separately registered or if it contains common or non-distinctive elements, the owner does not get exclusive rights to those individual parts.
The anti-dissection rule means that when comparing two trade marks, we should look at them in their entirety rather than dissecting them into individual components. This approach is based on the idea that consumers with average intelligence and imperfect memory perceive the overall impression of a trade mark, not its individual parts. Therefore, conflicting trade marks must be compared as a whole to determine if they are deceptively similar.
In the case of Gtz India Pvt. Ltd. vs. Artek Surfins Chemicals Ltd. & Anr.(2024), the court applied the anti-dissection rule. They compared the trade marks of Gtz India Pvt. Ltd. and Artek Surfins Chemicals Ltd. as complete entities. The court emphasised that consumers would not analyse each component of the trade marks separately. Instead, they would perceive the overall look, sound, and structure of the trade marks, thus determining whether the trade marks were deceptively similar in their entirety.
Validity of Section 17 of Trade Marks Act, 1999
Section 17 of the Trade Marks Act, 1999, plays a critical role in regulating composite trade marks, which consist of multiple components such as words, logos, or symbols. The main purpose of this section is to protect the whole of the trade mark. It does not allow one degree of protection to each individual element, except where those components are separately registered or have gained secondary meaning over time.
The validity of Section 17 lies in its ability to prevent the monopolisation of generic or descriptive elements of a composite trade mark. It ensures that trade mark owners do not gain unfair advantages by claiming exclusive rights over common terms or symbols that should be available for use by all competitors in the marketplace.
Additionally, Section 17 helps trade mark owners by allowing them to file for protection of each component of the trade mark separately, ensuring that as many aspects as possible are safeguarded. It also enables third parties to use parts of a mark that are not significantly unique or important. The general objectives of Section 17 include safeguarding trade marks, preventing confusion, and encouraging fair competition and innovation in the market.
The need for Section 17 also arises from the public interest, which may not allow trade mark owners to be granted broad rights, as is evident from some of the recent court precedents. Section 17 in the same respect grants protection for trade mark owners while placing other aspects within the business’s commerce available for use by others. It provides much needed clarity on the scope of trade mark protection with regard to composite marks.
Relevant case laws
United Biotech Pvt. Ltd. vs. Orchid Chemicals & Pharmaceuticals Ltd. (2012)
Facts
In this case, United Biotech Pvt. Ltd. vs. Orchid Chemicals & Pharmaceuticals on (18 May, 2012) United Biotech Pvt. Ltd. filed a trade mark infringement suit against Orchid Chemicals & Pharmaceuticals Ltd. The dispute was regarding the use of the trade mark “FORZID,” which was registered by United Biotech. Orchid Chemicals & Pharmaceuticals had launched a product under the brand name “ORZID,” which United Biotech claimed was deceptively similar to their trade mark, “FORZID.” United Biotech argued that the similarity between the two names could cause confusion among consumers, leading them to believe that the two products were related.
Issue
Whether the use of the trade mark “ORZID” by Orchid Chemicals constitutes infringement of United Biotech’s registered trade mark “FORZID” under the Trade Marks Act, 1999.
Whether Orchid Chemicals was passing off their product as that of United Biotech’s by using a deceptively similar mark.
Judgement
The court considered that the trade marks “FORZID” and “ORZID” were confusingly similar due to their deceptively similar appearance, and incredibly both trade marks belong to pharmaceutical products, so this factor increases consumer confusion. Therefore, the court provided an order to prevent Orchid Chemical from using the trade mark known as “ORZID.”
This case falls under Section 17 of the Trade Marks Act, 1999, which states that a registered trade mark as a matter of law shall comprise of the whole of the mark and none of its part, unless such part is registered. Overall, the court did not go by each letter or part of the trade marks but saw the trade marks as a whole in order not to cause confusion between more than two or confusingly similar marks.
Ultratech Cement Limited and Ors. vs. Dalmia Cement Bharat Limited, (2016)
Facts
In the case of Ultratech Cement Limited And 1 Ors vs Dalmia Cement Bharat Limited on (10 June, 2016)Ultratech Cement Limited and Grasim Industries Limited (Plaintiffs) filed a suit against Dalmia Cement Bharat Limited (Defendant) for trademark infringement and passing off. The plaintiffs claimed that the defendant’s use of the word ‘Ultra’ in their trademarks ‘Dalmia ULTRA’ and ‘DALMIA ULTRA’ was an infringement of the plaintiffs’ registered trademarks containing the word ‘UltraTech’. The plaintiffs alleged that the use of ‘Ultra’ by the defendant would likely cause confusion among consumers and damage the plaintiffs’ goodwill.
Issues
Whether the use of the word ‘Ultra’ by the defendant in their trademarks constituted an infringement of the plaintiffs’ registered trademarks containing ‘UltraTech’.
Whether the defendant’s use of the word ‘Ultra’ amounted to passing off their goods as those of the plaintiffs.
Judgment
The court examined the facts and arguments presented by both parties. It found that the word ‘Ultra’ is a common descriptive term and not distinctive enough to warrant exclusive use by the plaintiffs. The plaintiffs’ trademarks are device/label marks containing ‘UltraTech’ as a whole, and the word ‘Ultra’ is not used independently. The court noted that the defendant’s use of ‘Dalmia ULTRA’ does not create a likelihood of confusion among consumers due to the prominence of the word ‘Dalmia’ which has been associated with the defendant for many years. Consequently, the court held that there was no prima facie case of trademark infringement or passing off by the defendant. The plaintiffs’ Notices of Motion were dismissed with no order as to costs.
Cadbury India Limited and Ors. vs. Neeraj Food Products (2007)
Facts
In the case of Cadbury India Limited And Ors. vs. Neeraj Food Products on (25 May, 2007) Cadbury India Limited and others (plaintiffs) filed a suit against Neeraj Food Products (defendant) on or about August 24, 2005. The plaintiffs claimed that the defendant had introduced chocolate products in the market with packaging that closely imitated the plaintiffs’ distinctive pillow packs. The defendant used the trademark ‘JAMES BOND’, which was phonetically and visually similar to the plaintiffs’ registered trademark ‘GEMS’. The plaintiffs argued that this similarity was likely to cause confusion and deception among consumers, constituting an infringement of their trademark and passing off the defendant’s goods as those of the plaintiffs.
Issues
Whether the defendant’s use of the trademark ‘JAMES BOND’ constituted an infringement of the plaintiffs’ registered trademark ‘GEMS’.
Whether the defendant’s packaging imitated the plaintiffs’ distinctive pillow packs to the extent that it amounted to passing off.
Whether the phonetic similarity between ‘GEMS’ and ‘JAMES’ would cause confusion among the purchasing public
Judgement
The court found that the plaintiffs had established a strong case for trademark infringement and passing off. The defendant’s pillow packs were nearly identical to those of the plaintiffs, including size, background colour, and visual impression of multicoloured chocolate tablets, differing only in the trademarks ‘GEMS’ and ‘JAMES BOND’. The phonetic similarity between ‘GEMS’ and ‘JAMES’ was likely to cause consumer confusion.
The court held that the plaintiffs’ extensive use and promotion of ‘GEMS’ had acquired significant goodwill and that the defendant’s use of similar packaging and ‘JAMES BOND’ was a dishonest attempt to benefit from the plaintiffs’ market presence.
The court concluded that the plaintiffs had made a prima facie case for trademark infringement, passing off, and copyright violation. The defendant was restrained from using the ‘JAMES BOND’ trademark and similar packaging, and an interlocutory injunction was granted to the plaintiffs.
Conclusion
Section 17 of the TM Act, 1999, deals with the registration of parts of a trade mark. It states that when a trade mark includes multiple elements, the registration gives the owner exclusive rights to use the trade mark as a whole. However, if any part of the trade mark is not separately applied for or registered, or if it includes common or non-distinctive elements, the registration does not grant exclusive rights to those individual parts.
It also assists in ascertaining the level of protection of composite trade marks, and hence, when conducting its analysis, it should receive thorough consideration. That way, the employment of the mark ensures that the registered owner cannot have exclusive claims of the components individualistic of the mark until the components of the individual trade marks are also registered. To put it in different terms, if several rights have not been granted, identification is per se accurate, and violation cannot be grounded upon components of the mark.
Examples of which are the several juridical methods that show that even where a composite mark has been registered as a whole, any portion thereof constituting a material part of the said whole and used by any individual or party without authorisation and which may create confusion or deception on the part of the public is a violation. However, in the case the owner wants maximum protection, it is explained in Section 17 how it is advisable to register each piece individually.
The TM Act regulates the rights that are given to the owners of trade marks with regards to composite marks, and it also makes certain that they get further protection in as much as they cannot register certain items in particular unless they want protection. This in turn helps companies to register the trade mark comprehensively with the aim of making sure that brands are sufficiently protected once outside the market.
Frequently Asked Questions (FAQs)
What other gains are there for the businesses other than registration of composite trade marks?
For further enhanced protection, the basic components of the composite marks, which may include logos or certain words, may be registered separately. To improve the legal protection, one is advised to register the parts of the mark separately and not the overall mark.
How can we tell if a change can be made at our discretion?
While changing any part of a composite trade mark, the original mark stays valid and protected as long as it does not change. However, the new mark can only be protected if it is registered. This means that if an important change is made, we need to submit a new application to protect the updated version.
Whether registration of a composite mark can effectively guard against passing off the product on which such mark is used?
In fact, passing off is provided by a single registration of a trade mark on the basis of its composition from one product to another single product. Nevertheless, in the majority of instances, the notions of reputation and goodwill are deemed. As for passing off claims, there are a few principles that have to be considered. It is here, however, where courts are most admittedly likely to determine that the use of any part of it is likely to cause confusion to the public even where the registration is helpful.
What happens, for example, when a person or organisation uses a part of my composite trade mark?
Where such excerpts result in confusion among consumers or where the user’s intention is to cause confusion and where the composite trade mark is either famous or distinctive, you may have a cause of action for infringement. Although, in case each portion is registered separately, then it proves convenient to secure rights over certain parts of the work. Each case is thus a special one, and therefore the court will determine whether or not a usage is an infringement or not.
Can I submit a claim that merely the component of a logo that I created comprises my whole trade mark logo?
However, as observed, without the separate registration of elements, one cannot track the option of asserting the proprietary of a particular section of a composite trade mark as in the result of the application. This is what Section 17 does; it expands protection of all the fields of the trade mark as registered without having to pinpoint the aspects that need such protection.
Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.
LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join:
This article is authored by Nidhi Bajajand updated by Kruti Brahmbhatt. This article provides an introduction to the Schedules of the Indian Constitution. This article is an exhaustive explanation of the meaning, evolution, and list of Schedules in the Indian Constitution with the concerned Articles to the Schedules. It includes important case laws and a tabular representation of the Schedules and related articles.
Table of Contents
Introduction
The Constitution of India is an extensive document which provides the framework for the proper governance of the country. It contains the structure of government, provides rights and duties to its citizens, encompasses the political rights and principles, its procedures and the responsibilities to be taken for both the government and citizens. The schedules play a major role in the functioning of the Constitution by providing clarity over various subject matters in the Constitution. However, initially, the Constitution comprised Eight Schedules but presently, it has Twelve Schedules which address the specific aspect of governance. It includes the division of power between the Union and the State Government, the use of official languages, matters for panchayats and municipalities, etc.
These Schedules are a detailed list and explanations of constitutional provisions which bring more clarity and make the implementation easier. For instance, for oaths and affirmations, the Schedules provide a clear format and expression for taking an oath or affirmation for the authorities.
Meaning of Schedules in the Indian Constitution
Generally, the term “Schedule” means a plan, a list of items, or a specific order or sequence. In legal terms, the Schedules are the list of supplementary details, and tables which support the main text. These Schedules are essential for the execution of the provisions of any laws. These may consist of legislative powers, administration of areas or regulations for salaries and allowances. Under the Indian Constitution, Schedules are appendices that prescribe additional information and clarifications to the Articles given in the Indian Constitution. Schedules are appended towards the end of enactment to provide additional details and prescribe the forms for working out the policy underlying the provisions. The object of Schedules is to avoid encumbering the sections/articles with matters of excessive detail.
History of Schedules in India
The Schedules for the first time in Indian laws were mentioned in the Government of India Act, 1935. There were a total of 10 Schedules in this Act, which were related to the matters of the federal legislature, Governor-General and governors, oaths and affirmations, the composition of provincial legislatures, franchise, legislative lists and the Federal Railway Authority. A few of the Schedules were also related to Burma.
On 26 November 1949, the Constituent Assembly of India adopted the Constitution of India, which replaced the Government of India Act, 1935. At this time, the Constitution had 395 Articles which were divided into 22 parts and 8 Schedules.
Later on, through various amendments to the Constitution, 4 new Schedules were added to the Constitution, which are as follows:
The First Schedule of the Constitution relates to the boundaries of the states and the union territories. It also includes the boundaries and territorial limits of the country. At present, there are 28 states and 8 union territories in the Union of India.
This schedule was adopted on October 15, 1949, addressing various issues of princely states and corrections in the state limits. The seats of the Lok Sabha are based on the size and population of the particular state or union territory under the First Schedule. It is related to Article 1 and Article 4 of the Indian Constitution. Major amendments are observed in this Schedule at the time of reorganisation of the state boundaries.
For example, recognition of Sikkim as a state, Goa, Daman, Diu, and Podicherry as the Union territories. It also includes the recent amendment of the addition of Ladakh and Jammu & Kashmir as Union territories.
Concerned articles of the Indian Constitution
Article 1: This article provides the Name and territory of the Union, which states that India, that is Bharat, is a Union of States. It comprises states, union territories and other territories that may be acquired.
Article 4: This article states that in cases where amendments are made as per Articles 2 and 3 of the Constitution, then such amendments shall be made in the First and Fourth Schedules as per the requirements, in supplemental, incidental and consequential matters.
Second Schedule
The Second Schedule contains provisions regarding the salaries and allowances payable to the President, Governors of States, Speaker and Deputy Speaker of Lok Sabha, Chairman and Deputy Chairman of Rajya Sabha and Judges of Supreme Court and High Courts. It consists of the following parts:
Part A deals with provisions relating to the President and the Governors of States
Part C contains provisions as to the Speaker and the Deputy Speaker of the House of People, the Chairman and Deputy Chairman of the Council of States, the Speaker and Deputy Speaker of the Legislative Assembly and the Chairman and Deputy Chairman of the Legislative Council of a State.
Part D contains provisions relating to the judges of the Supreme Court and the High Court.
Part E contains provisions as to the Comptroller and Auditor General of India.
Seventh Constitutional Amendment Act,1956, omitted Part B of the Schedule. Part B of the Second Schedule contended the provisions regarding the salaries and allowances of the Centre and State Ministers. Hence, the salaries and allowances of the Prime Minister or any other ministers, Advocate General or Attorney General are not covered in the Second Schedule.
Concerned articles of the Indian Constitution
Article 59(3), Article 65(3) and Article 158(3): These articles entitle the President, Vice President and Governor of the state, respectively, to use the official residence without payment of rent and also entitle them to emoluments, allowances and privileges.
Article 75(6): This article provides for salaries and allowances of ministers which shall be prescribed in the Second Schedule.
Article 97 and Article 186: These articles provide the provisions for salaries and allowance of the Chairman and Deputy Chairman, and the Speaker and Deputy Speaker, as prescribed in the Second Schedule.
Article 125: This article provides salaries, privileges and allowances to the Judges of the Supreme Court and Chief Justice as prescribed in the Second Schedule.
Article 148(3): This article provides salary and other conditions of service of the Comptroller and Auditor General as prescribed in the Second Schedule.
Article 164(5): This article provides for salaries and allowances of Ministers of the State which shall be prescribed in the Second Schedule.
Article 221: The salaries, privileges and allowances of the High Court judges shall be as prescribed in the Second Schedule.
Third Schedule
The Third Schedule provides forms of oaths or affirmations for persons in decision-making positions, such as Ministers, Judges or Auditors. The purpose behind these oaths or affirmations is to ensure that the duties assigned to them are discharged faithfully, without any pressure or biases, to maintain secrecy in matters and to ensure that the post is not misused.
The Third Schedule provides for the forms of oaths or affirmations including.
Form of oath of office for a union minister.
Form of oath of secrecy for a union minister.
Form of oath or affirmation to be made by a candidate for election to parliament.
Form of oath or affirmation to be made by a member of parliament.
Form of oath or affirmation to be made by the judges of the Supreme Court and the Comptroller and Auditor General of India.
Form of oath of office for a minister for a state.
Form of oath of secrecy for a minister for a state.
Form of oath or affirmation to be made by a candidate for election to the legislature of a state.
Form of oath or affirmation to be made by a member of a state legislature.
Form of oath or affirmation to be made by the judges of the High Court.
Concerned articles of the Indian Constitution
Article 75(4): The President administers oaths of office and secrecy to the Minister before the Minister handles his charge. This oath shall be according to the form prescribed in the Third Schedule.
Article 99: The members of both houses shall take an oath or affirmation before taking their seat to the President or a person appointed by him.
Article 124(6): This article prescribes that the person appointed to be a Judge of the Supreme Court shall take an oath or affirmation before the President as provided in the Third Schedule.
Article 148(2): The person appointed as Comptroller and Auditor General of India shall before handling his office take an oath or affirmation before the President as provided in the Third Schedule.
Article 164(3): This article prescribes that before a Minister of a State enters upon his office, the minister shall take an oath of office and secrecy according to the forms given in the Third Schedule.
Article 84(a) & Article 173: These articles disqualify membership of the members of Central and State Legislatures, in case if he/she is not an Indian citizen, does not make or subscribe to an oath or affirmation before any authorised person by the Election Commission in the form given under Third Schedule.
Article 188: This article prescribes that before the members of the Legislative Assembly or the Legislative Council of a State shall take up the charge, he/she shall take oath or affirmation before the Governor according to the form set out for the purpose in the Third Schedule.
Article 219: This article prescribes that the person appointed to be a Judge of the High Court shall take an oath or affirmation before the Governor of the State.
The form of oath or affirmation of the President or Governor is not prescribed under the Third Schedule because these are expressly mentioned and covered under Articles 60 and 159 of the Indian Constitution.
Fourth Schedule
The Fourth Schedule provides the seat distribution for the Rajya Sabha. Out of 250 Rajya Sabha seats, 12 seats are reserved for the nomination by the President and the rest 238 seats are divided amongst the States and Union Territories.
The highest number of Rajya Sabha seats comes from the State of Uttar Pradesh which is 31, followed by Maharashtra and Tamil Nadu which are 19 and 18 respectively. The Andaman and Nicobar Islands, Daman and Diu, Lakshadweep, and Chandigarh have no seats in the Rajya Sabha.
Hence, the Fourth Schedule is the allocation of seats in the Council of States.
Concerned articles of the Indian Constitution
There are two concerned articles for the Fourth Schedule, Article 4(1) and 80(2). Article 80(2) provides that the Rajya Sabha shall be filled by representatives as prescribed in the Fourth Schedule.
Fifth Schedule
The Fifth Schedule contains the provisions relating to the administration and control of Scheduled areas and Scheduled tribes. This schedule covers all such areas except the scheduled areas and scheduled tribes from the states of Assam, Meghalaya, Tripura and Mizoram. These communities which are declared as scheduled areas and schedule tribes observe some different administration and control in order to protect them. These are usually the areas which are hilly or are dense forest regions. The reason for this provision is to ensure the growth and development of the tribes who are illiterate and poor. They are given certain privileges and protections.
The recommendations from the Dhebar Commission are used as criteria for the declaration of Schedule Area under this Schedule. The criteria included the following:
Preponderance of the tribal population
Compactness and reasonable size of the area
A viable administrative entity such as a district, block or taluk, and,
Economic backwardness of the area as compared to the other neighbouring areas.
Further, this Schedule is divided into 4 parts:
Part A: General
It provides that the executive power of a state extends to the Scheduled areas included therein. The Governor of each State having Scheduled areas therein is required to make a report to the President regarding the administration of such areas.
Part B: Administration and Control of Scheduled Areas and Scheduled Tribes
It provides for the establishment of a Tribes Advisory Council in each state having Scheduled areas and on the direction of the President, in states having Scheduled tribes but not Scheduled areas. It also provides for the laws applicable to Scheduled areas.
Under the Fifth Schedule, Tribes Advisory Council shall consist of not more than 20 members, out of which three-fourths shall be representatives of the Scheduled Tribes in the State Assembly. The Council has the duty to provide advice in matters concerning the welfare and advancement of the Scheduled Tribes. The number of members, appointment of members, Chairman of the Council, meetings and procedure or any other matter regarding the council may be decided by the Governor.
The Fifth Schedule also provides that any law can be made applicable or non-applicable to a Schedule Area by the Governor through a public notification. Such a decision can be made to maintain peace and good governance in the Schedule Area. These laws can be regarding imposing prohibition or restriction on the transfer of land, regulating the land allotment or carrying on of business as money-lender.
Part C: Scheduled Areas
Under the Fifth Schedule, ‘Scheduled Areas’ means those areas that are declared by the order of the President to be Scheduled Areas. The President may order in a case where an area ceases to be a Scheduled Area, increase in the area of Schedule Areas, in case of rectification in the boundaries of the area, etc, only.
Part D: Amendment of the Schedule
The Parliament is empowered to make additions, variations or to repeal any of the provisions of this Schedule by making a law in this regard.
Concerned article of the Indian Constitution
Article 244(1): It provides that the provisions of the Fifth Schedule shall apply to the administration and control of the Scheduled areas and Scheduled tribes in any State other than the States of Assam, Meghalaya, Tripura and Mizoram.
Sixth Schedule
The Sixth Schedule contains provisions for the administration of tribal areas in the States of Assam, Meghalaya, Tripura, and Mizoram. It provides for the administration of tribal areas as autonomous districts and autonomous regions. The tribal areas regulated/administered by the Schedule are:
In the State of Assam
The North Cachar Hills District
The Karbi Anglong District
The Bodoland Territorial Area District
In the State of Meghalaya
Khasi Hills District
Jaintia Hills District
The Garo Hills District
In the State of Tripura
Tripura Tribal Areas District
In the State of Mizoram
The Chakma District
The Mara District
The Lai District
The Sixth Schedule provides that the Governor may divide different Schedule Tribes into autonomous districts and divide the area or areas where they inhabit into autonomous regions. The Governor has the powers to include or exclude any such area, create a new autonomous district, increase or diminish any such area or unite two or more such districts. The Governor may also define boundaries or alter the names of the autonomous districts.
A District Council shall be constituted for each autonomous district consisting of not more than thirty members, out of whom not more than four persons shall be nominated by the Governor. Apart from this, there shall be a separate Regional Council for each area constituted as an autonomous region. However, the administration of such districts is not vested in the Sixth Schedule. The powers of these councils shall be restricted to the areas under their authority.
Rules for the first constitution of District Councils and Regional Councils shall be made by the Governor. This includes the composition of councils and allocations of seats, delimitation of constituencies for conducting elections, preparing electoral rolls and setting qualifications for voting, deciding the term of office, appointments of officers, and any other matters relating to or connected with elections or nominations. After the first constitution, the District or Regional Councils shall make rules on the above-mentioned entries.
The District Council can make laws with respect to all areas under their control except for those under Regional Councils. The District Council can make laws on entries like allotment, occupation or use of land of reserved forest, management of any forest which is not reserved forest, use of any canal, the regulation of the practice of jhum, the establishment of village or town committees, appointment or succession of Chiefs or headmen, and social customs. All these framed laws are to be assented to by the Governor.
The below listed are the powers of the District Councils and Regional Councils under the Sixth Schedule:
Administer justice in autonomous districts and regions
The District Council has powers to establish primary schools, etc.
It has powers to assess and collect land revenue and to impose taxes in their respective areas
It can issue licences or leases for the purpose of prospecting for, or extracting minerals in their respective areas
District Councils have powers to make regulations for the control of money-lending and trading by non-tribals.
It can publish laws, rules and regulations under this Schedule.
A report has to be filed before the District Council for discussion of estimated receipts and expenditures regarding the autonomous districts. This report has to be shown separately in the annual financial statement.
The below listed are the powers of the Governor under Sixth Schedule of the Constitution.
A Commission shall be appointed by the Governor to examine and report the matters relating to the administration of the autonomous districts and autonomous regions. These reports shall be before the State legislature with the Governor’s recommendations.
The Governor may annul or suspend the acts and resolutions which are passed by the District and Regional Council when the Governor feels that it is likely to endanger the safety of India. The Governor may also suspend the Council or its power to prevent such acts in future.
The Governor may dissolve the District or Regional Council based on the Commission’s recommendations. The Governor shall direct elections for reconstitution of the Council or assume the administration of such an area under himself for a period not more than twelve months.
The Governor may exclude any area from autonomous districts in forming constituencies in such districts.
Concerned articles of the Indian Constitution
Article 244(2): This article states that the provisions of the Sixth Schedule shall apply to the administration of the tribal areas in the States of Assam, Meghalaya, Tripura and Mizoram.
Article 275(1): This article states that the Union government may provide grants-in-aid to the state who need assistance. These grants are paid from the Consolidated Fund of India, these grant-in-aid are especially for the schemes that promote the welfare of Scheduled Tribes and improve the administration of Scheduled Areas.
Seventh Schedule
The Seventh Schedule provides a division of powers to make laws between the Center and State; it is similar to the division provided in the Government of India Act, 1935. Herein, the Union Government is given more power in comparison to the states. The Seventh Schedule provides the three lists, Union List, State List and Concurrent List. Initially, there were 97 entries in the Union list, 61 entries in the State List and 47 entries in the Concurrent List, however, there were amendments made through 88th Constitutional Amendment Act, 2003 and 42nd Constitutional Amendment Act, 1976. The Parliament and state legislatures have the power to make laws with respect to any of the matters falling within their field of legislation under Article 246 read with the Seventh Schedule of the Constitution.
The Seventh Schedule contains three lists that provide for the fields of legislation:
Union List: The Union List enumerates the items/entries with respect to which the Parliament has the exclusive power to legislate. The Union List in the First List comprises 97 items in the list. A few of them are the defence of India, naval, military, and air forces; atomic energy, foreign affairs, war and peace, citizenship, extradition, currency, railways, post and telegraph, banking, insurance, Reserve Bank of India, census, etc.
State List: The State List in the Second List enumerates the entries with respect to which the state legislature has the exclusive power to legislate. The State List comprises 66 items in the list. A few of them are police, local government, public health and sanitation, intoxicating liquors, taxes on agricultural income, water, land, fisheries, gas and gas works, markets and fairs, pilgrimages, animal husbandry, relief for the disabled and unemployable, betting and gambling, treasure trove, prison reforms, etc.
Concurrent List: Concurrent List is the Third List and it enumerates the entries with respect to which both parliament and the state legislature have the power to make laws. For example, criminal law and procedure, transfer of property other than agricultural land, contracts, trusts, actionable wrongs, civil procedure, evidence and oaths, forests, etc. As the name suggests, both the Union Parliament and the state legislatures are vested with concurrent powers of legislation with regard to matters contained in the Concurrent List.
Despite this clear division of power in making laws, there are conflicts between Union and State Governments. At times, the interpretation of the provisions of the lists has led to inter-state disputes.
Concerned article of the Indian Constitution
Article 246: This article prescribed that the Parliament has exclusive power to make laws with respect to any of the matters provided in List 1 of the Seventh Schedule, which is the Union list. Further, the State has the power to make laws for the matters in List 2 of the Schedule and at last, both the Parliament and State legislature have the power to make laws on the matter provided in the Concurrent List. The Parliament can make laws regarding any matter for the territory of India except the matter included in the State List.
Eighth Schedule
India being a diverse country, has many languages out of which a few of them are declared as official languages. This Schedule provides a list of “official languages” of the country. Initially, Hindi was declared as the official language of the country which was later amended and many other languages were added. There were 14 languages in the Schedule but presently it contains 22 languages namely:
Assamese
Bengali
Bodo
Dogri
Gujarati
Hindi
Kannada
Kashmiri
Konkani
Maithili
Malayalam
Manipuri
Marathi
Nepali
Odia
Punjabi
Sanskrit
Santhali
Sindhi
Tamil
Telugu
Urdu
Concerned articles of the Indian Constitution
Article 344: This article prescribes the commencement of a commission and committee of Parliament on official language. This commission shall be constituted after the expiry of ten years from the last commencement. This commission has to recommend to the President the progressive use of the Hindi language for official purposes, restrictions on the use of the English language for all or any of the official purposes, etc.
Article 346: This article provides the official language for communication between one State and another or between a State and the Union. Herein, the language which is authorised by the Union for official purposes shall be the official language for inter-state communication. However, in cases where two or more States agree that the Hindi language should be the official language for communication, it can be used for communication.
Article 351: Under this article, it is the duty of the Central Government to promote the Hindi language to serve as a common means of communication. This includes encouraging the use of Hindi and other languages mentioned in the Eighth Schedule of the Constitution. Additionally, the government must try to draw vocabulary, primarily from Sanskrit and from other languages whenever necessary.
Ninth Schedule
Article 31B of the Constitution provides for ‘validation of certain acts and regulations specified in the Ninth Schedule.’ The Ninth Schedule was added to the Constitution by the Constitution (First Amendment) Act, 1951. The object behind adding the Ninth Schedule was to protect certain acts and regulations from being declared void on the ground that they violate the fundamental rights provided under Part III of the Constitution.
Thus, the Ninth Schedule contains a list of enactments that are immune from being challenged in a court of law on the ground that they violate the fundamental rights of any citizen. Originally, there were only 13 laws in the Ninth Schedule but at present, there are 284 laws provided under the Ninth Schedule. Some of the laws mentioned under the Ninth Schedule are as follows:
The continuous increase in the number of laws on the list was concerning because of the clear misuse of the Ninth Schedule. Herein, the laws were protected from judicial review which might be unconstitutional. The Supreme Court in the case of Kesavananda Bharati Sripadagalvaru vs. State of Kerala and Anr (1973), held that the court can declare any law unconstitutional if it violates the basic structure of the Indian Constitution. The court observed that there is a clear division of powers between the Union and the States under the Seventh Schedule, this maintains a clear balance of power in the federal structure.
Further, in the case of Waman Rao and Ors vs. Union of India (1981), the Supreme Court held that the subject under the Ninth Schedule after 24th April 1973, shall be challenged on the basis of their constitutional validity. In the case of I.R. Coelho (Dead) by Lrs vs. State of Tamil Nadu & Ors (2007), the Supreme Court has held that where a legislation held to be violative of any of the fundamental rights is subsequently incorporated in the Ninth Schedule after 24th April 1973, then such a violation shall be open to challenge on the ground that it destroys the basic structure under Article 21 read with Article 14, Article 19.
Concerned articles of the Indian Constitution
Article 31B: This article provides that no Acts under the Ninth Schedule be deemed to be void, or shall ever become void, on the basis that they are inconsistent with the rights conferred in Part III of the Constitution. However, these can be subject to repeal or amendment by the Legislature. Hence, these laws are protected from judicial review, which ensures that even if they violate fundamental rights, they can’t be termed void. This Article is retrospective in nature.
Tenth Schedule
The Tenth Schedule of the Constitution contains provisions as to disqualification on the ground of defection. The Tenth Schedule was added by the Constitution (Fifty-second Amendment) Act, 1985 to combat the evil of political defections and is also called the ‘Anti-defection Law’.
The Constitution lays down that a person shall be disqualified for being a member of either House of Parliament or of either House of a State Legislature if he is so disqualified under the Tenth Schedule.
The Tenth Schedule contains the following provisions:
Disqualification of members of Parliament and State Legislature on the grounds of defection
Members of political parties
A member of a House belonging to any political party becomes disqualified for being a member of the House:
If he voluntarily gives up his membership in such a political party; or
If he votes or abstains from voting in such House contrary to any direction issued by his political party without obtaining prior permission of such party and such act has not been condoned by the party within 15 days.
Independent members
An independent member of a House (who has been elected without being set up as a candidate by any political party) becomes disqualified for being a member of the House if he joins any political party after such election.
Nominated members
A nominated member of a House becomes disqualified from being a member of the House if he joins any political party after the expiry of six months from the date on which he takes his seat in the House.
Exceptions
The disqualification on the ground of defection does not apply in the following two cases:
In the case of a merger of a political party with another political party, that is to say:
the member joins another political party or the new party formed as the result of a merger or
the member does not accept the merger and opts to function as a separate group
In case a member, after being elected as the presiding officer of the House, voluntarily gives up the membership of his party (and does not rejoin that party as long as he holds that office) or rejoins it after he ceases to hold that office.
Deciding authority
Any question regarding disqualification arising out of defection is to be decided by the presiding officer of the House.
The presiding officer of a House is empowered to make rules to give effect to the provisions of the Tenth Schedule.
In the case of Kihoto Hollohan vs. Zachillhu & Others(1992), in this case, the petitioners argued that the 52nd Amendment Act, 1985 does make changes to certain parts of the Constitution which requires ratification by at least half of the State legislatures. Further, the petitioners also argued that it takes away the power of judicial review and that the Tenth Schedule violates Article 105 and Article 194 of the Constitution. Additionally, giving powers of disqualifications to the Speaker might be unfair. The Supreme Court upheld the constitutional validity of the Tenth Schedule. It was also held by the court that the decision of the Speaker disqualifying a member on the ground of defection is subject to judicial review. Also, for maintaining political stability restrictions under the Tenth Schedule were justified.
Similarly, in the case ofKeisham Meghachandra Singh vs. The Hon’ble Speaker Manipur (2020), the 52nd Amendment changes were challenged on the basis of constitutional validity. The Supreme Court held that the Tenth Schedule does not violate the basic structure of the Constitution. The court observed that these were reasonable restrictions on the legislators’ freedom of speech and expression.
Concerned articles of the Indian Constitution
Article 102(2): This article provides that a person shall be disqualified from being a member of the Parliament if that person is disqualified under the Tenth Schedule of the Constitution.
Article 191(2): This article provides that a person shall be disqualified from being a member of the State Legislative Assembly or Legislative Council if that person is disqualified under the Tenth Schedule of the Constitution.
Eleventh Schedule
Added to the Constitution by the Constitution (Seventy-third Amendment) Act, 1992, the Eleventh Schedule deals with the powers, authority, and responsibilities of Panchayats. This provides the powers and functions of the Panchayats for governance in rural areas. This is a three-tier system, which has Gram Panchayats at the village level, Panchayat Samitis at the block level and Zilla Parishads at the district level. It contains 29 functional items of the panchayats, some of which are mentioned below:
Agriculture
Land improvement, implementation of land reforms, land consolidation and soil conservation
Minor irrigation, water management and watershed development
Animal husbandry, dairying and poultry
Fisheries
Non-conventional energy sources
Poverty alleviation programme
Education, including primary and secondary schools
Technical training and vocational education
Adult and non-formal education
Libraries
Cultural activities
Markets and fairs
Health and sanitation including hospitals, primary health centres and dispensaries
Concerned Articles of the Indian Constitution
Article 243G: This article enables panchayats to make decisions on the matters provided in the Eleventh Schedule of the Constitution. This includes the powers, authority and responsibilities of panchayats to prepare plans for economic development and social justice.
Twelfth Schedule
The Twelfth Schedule deals with the powers, authorities, and responsibilities of the municipalities. It was also added by the Constitution (Seventy-third Amendment) Act, 1992. The structure for the Municipal bodies is Nagar Nigams, Nagar Palikas and Nagar Panchayats. Which are Nagar Panchayats, Municipal Council and Municipal Corporations. It contains 18 functional items of the municipalities that are mentioned below:
Urban planning including town planning.
Regulation of land use and construction of buildings.
Planning for economic and social development.
Roads and bridges.
Water supply for domestic, industrial and commercial purposes.
Public health, sanitation conservancy and solid waste management.
Fire services.
Urban forestry, protection of the environment and promotion of ecological aspects.
Safeguarding the interests of weaker sections of society, including the handicapped and mentally retarded.
Slum improvement and upgradation.
Urban poverty alleviation.
Provision of urban amenities and facilities such as parks, gardens, and playgrounds.
Promotion of cultural, educational and aesthetic aspects.
Burials and burial grounds; cremations, cremation grounds and electric crematoriums.
Cattle pounds; prevention of cruelty to animals.
Vital statistics including registration of births and deaths.
Public amenities include street lighting, parking lots, bus stops and public conveniences.
Regulation of slaughterhouses and tanneries.
Concerned articles of the Indian Constitution
Article 243W: This article provides powers, authorities and responsibilities to municipalities to govern urban areas. It enables the State Legislature to give authority to the municipalities to function as an institution of self-governance for the matters provided in the Twelfth Schedule of the Constitution.
List of Schedules of the Indian Constitution
Following is a list of Schedules in the Indian Constitution and the articles they are read with:
SCHEDULE
SUBJECT MATTER
CONCERNED ARTICLES
First Schedule
List of States and Union territories and their respective territories
Articles 1 and 4
Second Schedule
Provisions relating to emoluments, allowances and privileges of the President, Governor of States, Judges of the Supreme Court and High Court etc.
Articles 75(4), 99, 124(6), 148(2), 164(3), 188 and 219
Fourth Schedule
Allocation of seats in the Council of States
Articles 4(1) and 80(2)
Fifth Schedule
Provisions as to administration and control of Scheduled Areas and Scheduled Tribes
Article 244(1)
Sixth Schedule
Provisions as to administration and control of Tribal Areas in the States of Assam, Meghalaya, Tripura and Mizoram
Article 244(2) and 275(1)
Seventh Schedule
The three lists namely the Union List, State List and Concurrent List deal with the subject-matter of legislation
Article 246
Eighth Schedule
Languages
Article 344(1) and 35
Ninth Schedule
Validation of certain acts and regulations i.e. list of Acts under Article 31B
Article 31B
Tenth Schedule
Provisions as to disqualification on the ground of defection
Article 102(2) and 191(2)
Eleventh Schedule
Matters in respect of which schemes for economic development and social justice are to be implemented by Panchayats i.e. powers and responsibilities of Panchayats
Article 243G
Twelfth Schedule
Matters in respect of which Municipalities have been endowed powers and authority to enable them to function as institution of self-government i.e. powers and responsibility of Municipalities
The schedules under the Indian Constitution are provided to lessen the complications of the provisions. It ensures smooth functioning and easy revisions of the provisions. These revisions and amendments in the schedules of the Constitution make it effective and efficient in this growing time. The schedules clearly divide and allocate powers and responsibilities in the interest of the citizens of the country.
For instance, the bifurcation of the powers in Seventh Schedule allows the State and Central Government to exercise their powers on the defined subjects. The establishment of administrative bodies such as district councils, regional councils, panchayats, and municipalities are a clear example of urban planning, protection of interests of scheduled tribes and areas, and a progressive approach for the rural areas.
Frequently Asked Questions (FAQs)
What are the Schedules in the Indian Constitution?
The Schedules of the Indian Constitution are additional details and information to the articles given the Constitution. These Schedules include lists of states and union territories of India, provisions for salaries and allowances, allocations of seats in Rajya Sabha, division of power between the State and Center Government, list of official languages, and powers, authority and responsibilities to Panchayats and Municipalities.
What was added through the 73rd and 74th Constitutional Amendment Acts?
The Eleventh and Twelfth Schedules were added to the Indian Constitution through the 73rd and 74th Constitutional Amendments. These schedules empower self-governance amongst the urban and rural areas. There are 29 matters in the Panchayats and 18 matters in the Municipalities. These Panchayats and Municipalities are given power, authority and responsibilities through the Eleventh and Twelfth Schedules.
Are oaths and affirmations for the President and Governor provided in the Third Schedule?
No, the oaths and affirmations for the President and Governor are not given in the Third Schedule in the Indian Constitution. These oaths and affirmations are prescribed in Article 60 and Article 159 of the Indian Constitution.
What are Anti-defection laws?
Anti-defection laws provide the grounds on which a Member of the Legislative Assembly or Member of Parliament may lose his/her privileges as an elected representative of the party. When a member voluntarily gives up the membership from the party, votes against the party mandate or joins any other party, then the said member will be disqualified from the party.
Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.
LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join:
As per American Psychological Association, “Discrimination is the unfair or prejudicial treatment of people and groups based on characteristics such as race, gender, age, or sexual orientation.” Such discrimination can occur at any place. As far as the workplace is concerned, it may occur at two stages: pre-recruitment and post-recruitment. It may be rejecting potential employees in favour of some other person, unfair payment, fewer benefits, and/or leave, or even termination. In this article, employment laws as well as workplace discrimination have been discussed.
Employment and its benefits
In today’s world, every person strives and works to attain something. Every person is employed. Earning by some means is an essential factor in each person’s life. Even a person who receives means through inheritance needs to work to sustain himself. Being in employment gives a person satisfaction or a sense of worth, i.e., he/she has achieved something. Employment means ‘being in a state of having paid work’. A person by working earns for himself as well as people dependent on him. Employment not only offers opportunities for acquiring means but also helps in the overall development of a person. It helps a person to develop his skills, to gain knowledge. As a person who is in employment gets experience, he comes across people from different walks of life. Thus, employment helps a person increase his network circle. This network circle may contain people with experience, which is another way a person may develop himself. A person who is employed always remains in a good state of well-being. Every person works to gain monetary gain or another thing. Hence, when he can gain that, he is mentally stable, increases self-esteem, and eventually reduces health-related issues. Also, it helps with improving the public services because a higher number of employed people will lead to the generation of tax revenue.
Employment laws
In place of employment, there will be two parties involved: employees and employers. The one who hires another is the employer, while the one who is hired is the employee or worker. There may be many instances where a person working may face problems while being employed. For example, a person may agree to work at a rate of wages that is very less than another person working at the same level or which he deserves to get. There may be favouritism where one may get wages at a rate more than the others or more than he deserves. There may be instances where a person’s services may be terminated without giving a proper notice or reason for leaving the work. This work is his only means of livelihood. There are many other instances which warrant the requirement of employment laws. These laws are a body of rules and regulations protecting the interests of both the employees and employers. It also consists of precedents.
Reasons for requirement of employment laws
To ensure that the employees get appropriate and fair wages.
To prevent unreasonable termination from work, i.e., ensuring job security.
To see that the work conditions are healthy and safe as per required standards.
These employment laws also govern the overall relationship in the system, i.e., employee and employer relationships.
Fixation of hours and periods of rest.
Ensuring availability of necessities.
To provide for a redressal mechanism in case of conflict.
Employment laws in British era
The laws during the British era were basically for the employers or industrialists. These laws protect these people and are more pro-employer than focussing on the needs of the employees. The earliest law was the Factories Act 1883. It had regulations or provisions relating to timing, wages, abolition of child labour and some related to conditions of health and security. Then there was the Trade Union Act of 1923, which had provisions that moved from pro-employer and looked after worker’s concerns. Some other legislation: Payment of Wages Act 1936, Trade Disputes (Amendment) Act 1938.
Employment laws in independent India
After independence, with the growing population, there was demand for welfare legislation. Even the views of freedom fighters had a greater impact at that time. The government had to make laws keeping these things in mind. Also, there was a need to adhere to various human rights regulations, treaties entered into internationally and conventions such as the International Labour Conference so as to ensure proper functioning of the laws and keep the standard of the laws on the same footing as the international laws. These laws had to adhere to the provisions of the constitution. A person’s fundamental rights shall not be violated. For example, the right to live in a healthy environment is a fundamental right that is implicit in Article 21, the right to life and personal liberty. To lead a proper life, it is necessary to live in a healthy environment, which means a clean workplace containing appropriate safeguards to protect the employees.
Keeping all this in mind, the Indian government had a big task to frame laws with respect to employment (labour laws). As far as labour law is concerned, it comes under the union list as well as concurrent list. When it comes under both means in case of union, matters under this can be covered only by union, while concurrent matters can be covered by both state as well as union. There are many laws which have been passed by the union alone, while there are some laws enforced by both the state and union and some enforced by the state that are applicable to only that state.
As far as states are concerned, in Maharashtra there are somewhat more than 50 laws passed on the subject matter. These laws are passed keeping in mind the conditions prevailing with respect to the industries.
Workplace discrimination
Discrimination is unjust treatment meted out against a person. It may be on the grounds of sex, gender, caste, disability, etc. Discrimination is basically part of the ideology or thinking of a person. When a person is discriminated against, a person is basically deprived of certain rights or privileges he is entitled to.
Workplace means a place where work is done, like the office, factory, etc. In a workplace, there may be instances where there can be pay disparity, meaning that two employees performing the same or comparable work may be paid unequally. In such cases no reasons may be given, or the reasons given are not logical or the reasons given are false. This may be due to family relationships or favouritism. It may also be on the basis of sex. According to a report in July 2022 and 2023, an average salaried man earned RS 20,666 while a woman made RS 15,722. The difference between the two amounts is quite large.
The discrimination may be in situations where people are more attractive as compared to people who are more attractive or who are physically unfit. Hence, this warrants making certain provisions to ensure that there is no workplace discrimination.
Constitutional provisions
There are certain articles in the constitution that prevent discrimination of any kind. Article 15 states that “The state is not allowed to discriminate on the basis of religion, race, caste, sex, or place of birth. However, there are certain exceptions in this case. Article 15 gives the state the authority to make provision for advancement of socially and educationally backward classes as well as economically weaker sections of citizens. Article 14 says everyone is equal before law. As per directive principles of state policy, the state can make provisions relating to equal pay for equal work. A person should pay according to the work done by him and if two people have done the same amount of work, there cannot be any kind of disparity with respect to the pay.
Code of Wages, 2019
It is an act of parliament. It was enacted to deal with wages, bonuses, and related matters. It subsumes all four acts of wages.
The Minimum Wages Act
The Minimum Wages Act, enacted in 1948, stands as a pivotal piece of legislation designed to protect the rights of workers and ensure their fair compensation. It serves as an act of parliament aimed specifically at setting the minimum wage standards for both skilled and unskilled labour.
In the past, employers often engaged in unfair practices, paying wages below what employees deserved or had been promised. Recognising this injustice, the Minimum Wages Act emerged not only to guarantee that workers receive a minimum wage sufficient for a basic standard of living but also to consider the financial capacity of the employing industry.
The Act strives to strike a delicate balance between these two factors. It acknowledges that while employees should be justly compensated for their work, the financial viability of the industry must also be taken into account. This approach ensures that wages are both fair to workers and sustainable for businesses.
Furthermore, the Minimum Wages Act empowers both the central government and individual states to establish minimum wage rates. The central government sets a baseline minimum wage, while states have the authority to adjust these rates based on regional circumstances and prevailing economic conditions. This provision recognises the diverse regional dynamics across India and allows for wage variations that align with local factors.
By establishing minimum wage standards and fostering collaboration between unions and states, the Minimum Wages Act serves as a crucial instrument in promoting social justice and economic equity. It safeguards workers from exploitation, ensures that they receive fair compensation for their labour and contributes to a more harmonious and balanced labour market.
As per the Act, while fixing the wages for a normal working day, the following needs to be taken into consideration:
The number of hours that are to be fixed should have one or more intervals included.
One day off should be given to the employee for rest.
Payment for the day decided to be given for rest should be paid at a rate not less than the overtime rate.
If an employee is involved in work that categorises his service in two or more scheduled employments, the employee’s wage will include the respective wage rate of all work for the number of hours dedicated to each task.
It is mandatory for the employer to maintain records of all employee’s work, wages, and receipts.
Appropriate governments will define and assign the task of inspection and appoint inspectors for the same.
These are some of the provisions of the act. The act is applicable throughout the country.
The Payment of Wages Act
The Payment of Wages Act serves as a crucial piece of legislation that regulates the manner in which wages are paid to employees. It establishes a comprehensive framework aimed at ensuring fairness, transparency, and timely payment of wages.
The Act’s applicability extends to employees who earn less than INR 24,000 per month, as per the 2017 report. This threshold plays a significant role in identifying the workforce segments covered under the Act’s provisions.
Beyond the Act’s core objective of regulating wage payments, it also emphasises the importance of establishing certain rules of conduct for employers and employees. These rules serve to create a harmonious and respectful work environment. Employers have the responsibility to treat their employees fairly, provide safe and healthy working conditions, and adhere to the terms and conditions outlined in employment contracts. Employees, on the other hand, are expected to perform their duties diligently, maintain discipline, and comply with company policies and procedures.
Furthermore, the Act recognises the significance of forming a body such as a union to represent the needs and interests of employees. A union acts as a collective voice for employees, enabling them to negotiate with employers on issues related to wages, benefits, and working conditions. Unions play a crucial role in promoting fairness and ensuring that employees’ rights are protected.
In summary, the Payment of Wages Act serves as a vital tool in regulating wage payments, establishing ethical conduct in the workplace, and fostering constructive relationships between employers and employees. The Act’s provisions help create a more equitable work environment where employees’ rights are safeguarded and employers fulfil their responsibilities effectively.
The Equal Remuneration Act of 1976
The Equal Remuneration Act, 1976, is a crucial piece of legislation in India that addresses the issue of gender pay disparity. It mandates equal pay for equal work for men and women, ensuring that individuals performing similar tasks receive the same remuneration regardless of their gender. This Act prohibits any form of discrimination in hiring or employment conditions based on sex, promoting fairness and equality in the workplace. It also aims to eliminate discriminatory practices in recruitment and service conditions, except where specific exemptions are provided by law.
The Central Advisory Committee, established under the Equal Remuneration Act, serves as a consultative body to the Central Ministry of Labour. Comprising representatives from various sectors, including employers, workers, and government, the Committee provides valuable advice and recommendations on matters related to pay equity. The Committee plays a crucial role in reviewing the implementation of the Act, identifying challenges, and suggesting measures to strengthen its enforcement.
The Equal Remuneration Act contributes significantly to creating a more gender-inclusive work environment. By promoting equal pay for equal work, the Act helps break down gender stereotypes and biases that have historically perpetuated wage disparities. It empowers women workers, allowing them to fully participate in the workforce and contribute to economic growth.
Furthermore, the Act sends a strong message that pay discrimination is unacceptable and that employers must prioritise fairness and equality in their compensation practices. By fostering a culture of respect and dignity for all workers, the Equal Remuneration Act helps build a society where women have equal opportunities and are valued for their contributions.
The Rights of Persons with Disabilities Act of 2016
The Rights of Persons with Disabilities Act, 2016 aims to protect the rights of disabled persons in India. Key provisions include:
Non-discrimination: Disabled persons have the right to equality and cannot be discriminated against on the basis of their disability. This includes protection from discrimination in employment, education, and access to public services.
Accessibility: The Act mandates that public buildings, transportation, and information and communication technologies be made accessible to disabled persons.
Education: Disabled children have the right to free and inclusive education in their neighbourhood schools or special schools. The Act also provides for reservations of seats for disabled persons in higher education institutions.
Employment: The Act prohibits discrimination against disabled persons in employment and mandates that government establishments provide reasonable accommodations to disabled employees. It also provides for the reservation of jobs for disabled persons in government establishments.
Social security: The government is required to frame schemes for the welfare of disabled persons, including providing them with financial assistance, healthcare, and rehabilitation services.
Grievance redressal: The Act establishes a mechanism for the redressal of grievances of disabled persons, including the appointment of a Chief Commissioner and State Commissioners for Persons with Disabilities.
Legal aid: Disabled persons have the right to free legal aid.
Punishment for offences: The Act provides for punishment for offences such as discrimination against disabled persons, denial of their rights, and violence against them.
The Sexual Harassment of Women at Workplace (Prevention, Prohibition And Redressal) Act 2013
The Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act 2013, or POSH Act, is landmark legislation in India that aims to protect women from sexual harassment in the workplace. It was enacted in response to the Vishaka Guidelines, which were issued by the Supreme Court in 1997 in the absence of domestic law on the subject. The POSH Act provides a comprehensive framework for addressing sexual harassment, including defining what constitutes sexual harassment, establishing reporting and investigation procedures, and outlining the rights and protections available to victims. Key features of the Act include the establishment of Internal Complaints Committees (ICCs) in workplaces to investigate complaints, the provision of safeguards for victims such as confidentiality and protection from retaliation, and the imposition of penalties on employers who fail to comply with the Act. Despite its significance, the implementation of the POSH Act has faced challenges, including a lack of awareness and understanding of the Act, inadequate enforcement mechanisms, and the underreporting of cases due to fear of retaliation. To address these issues, there have been calls for greater government oversight, increased awareness and training programs, and the establishment of more effective complaint redressal mechanisms.
Conclusion
These are needed for smooth functioning of the organisation and, at the same time, to provide the employee with what he deserves for the work he does. There should be no discrimination on any basis. Such acts may cause that person to lose morale and may cause mental health issues. Also, this can be a reason for low energy. Slowly and steadily, this leads to low output rates. This is indirectly harmful for the employer due to the loss he may suffer in the future.
This article is authored by Isha Garg. In this article, there is detailed discussion of international and national authorities related to Trade marks which is one of the widely used intellectual property rights. It discusses the various authorities that are established under Trade Marks Act, 1991 and their functions. It also deals with the reasons which led to abolishment of Intellectual Property Appellate Board.
Table of Contents
Introduction
Trade mark is a distinctive symbol, sign, word or phrase that is registered legally under the Trade Marks Act, 1999. It is used to identify and distinguish a product or services of a particular source from those of others in the market. They play a significant role in branding and consumer protection by ensuring that consumers can reliably identify the source of product and services provided in the market. The protection of trade marks is generally governed by governmental authorities in accordance with the standards established by the Trade-Related Aspects of Intellectual Property Rights, 1994 (TRIPS).
The Trade Marks Act, 1999 also adheres to TRIPS and international obligations. This Act provides a comprehensive legal framework for the protection and enforcement of trade marks. It also simplifies the process of registration and establishes various authorities for handling trade mark related disputes.
Trade mark authorities are quasi-governmental bodies responsible for supervising the registration, protection and enforcement of trade marks within certain jurisdictions. These authorities are significant for ensuring the integrity of the trade mark system so that businesses can protect their brand identities from unauthorized use.
Trade mark authorities in India
The authorities responsible for trade marks in India predominantly include:
Controller General of Patents, Designs and Trade marks (CGPDTM);
Trade Marks Registry (TMR);
Intellectual Property Appellate Board (IPAB): Abolished in April, 2021;
High Courts.
Controller General of Patents, Designs and Trade Marks (CGPDTM)
CGPDTM is a fundamental authority in the realm of intellectual properties. It is responsible for the administration of intellectual property rights (IPR), including trade marks and other industrial designs. This position is controlled by the Department for Promotion of Industry and Internal Trade (DPIIT), Ministry of Commerce and Industry under the government of India.
As per Section 3 of the Trade Marks Act, 1999, the Central Government appoints a person who is known as the Controller General of Patents, Designs and Trademarks. He shall be registrar for the purposes of Trade Marks Act, 1999.
Furthermore, the Central Government has power to appoint such other officers as it thinks for the purpose of discharging functions under control and supervision of the registrar.
The Head office of the CGPDTM (trade marks) is located in Mumbai.
It plays a critical role in fostering innovation, creativity, and fair competition within the Indian economy by protecting intellectual property rights of the individuals. The role of CGPDTM has expanded over years with the evolving intellectual property rights in global trade. The CGPDTM leads a network of offices and divisions, each specializing in different aspects of intellectual property rights. These include:
The patent office: It has headquarters in Kolkata and branch offices in Mumbai, Chennai and Delhi. It is responsible for the examination and administration of patents in India.
The design office: It has head office in Kolkata. This office handles registration and administration of industrial designs.
The trade mark registry: It operates across five offices in Mumbai, Delhi, Chennai, Kolkata and Ahmedabad. Its responsibilities include registration of trade marks and ensuring their protection.
The geographical indications registry: It is located in Chennai. It oversees registration and protection of geographical indications. Geographical indications are the labels used on products that have a specific geographical location and possess quality specially owing to that region.
The patient information system (PIS) and intellectual property training institute (IPTI): Both the offices are situated in Nagpur. It offers comprehensive patent information to stakeholders, whereas the other concentrates on training and awareness programs concerning intellectual property.
Trade Marks Registry
In India the Trade Marks registry was established in the year 1940. Now it administers the Trade Marks Act, 1999 and the Trade Marks Rules, 2017. One significant function of the registry is to register all those trademarks which qualify for the requirements of registration as provided under the Trade Marks Act, 1999 and Trade Marks Rules, 2017. It also maintains the register of trademarks.
After joining the Madrid Protocol of 1989, which is a treaty under the Madrid system for the registration of trademarks, the Trade Marks registry also has to perform as an office of origin in respect of applications made by the Indian entrepreneurs seeking international registration of their trademarks and also as an office of the designated contracted party regarding international registrations in which India is designated for safeguarding relevant trademarks.
According to clause (2) of the said section, the head office of trademarks registry will be established at such places as the Central Government may by official gazette specify. For the purpose of facilitating the registration of trademarks, the Central Government may also establish branch offices of the trade mark registry.
Clause (3) provides that the Central Government may by official gazette define the territorial limits within which the trade marks registry should exercise its jurisdiction.
It further provides under clause (4), that there should be a seal of trade marks registry.
The trade marks registry functions under the superintendence and control of the Controller General of Patents, Designs and Trade Marks. It carries out its statutory functions in compliance with the provisions of the Trade Marks Act, 1999 and the Trade Marks Rules, 2017.
The Trade marks registry’s headquarter is situated in Mumbai and branch offices are situated in Ahmedabad, Chennai, Delhi and Kolkata. However, the international registration wing for the purpose of international applications and registrations under Madrid protocol is situated in Mumbai only.
The trade marks registry is established to facilitate the registration of trademarks in India. The Controller General of Patents, Designs and Trade Marks serves as the registrar of the trade marks, supported by officers designated as Sr. Joint Registrar of trade marks and GI, Joint Registrar of trade marks and GI, Deputy Registrar of trade marks and GI, Assistant Registrar of trade marks and GI and Examiner of trade marks and GI.
Administrative steps involved in Trade Marks registry which are contained under Section 18 to 26 of the Trade Marks Act, 1999
Step 1: The application for registration of trademarks is received at the head office (which is situated in Mumbai) or the branch offices of Trade Marks registry. The application is made at a place within whose territorial limits the principal place of business of the applicant is situated. Then the application passes through the formality check and digitization at the respective offices.
Step 2: Generally, the application is examined under Section 9 as to whether the particular mark is capable of distinguishing applicant’s goods or services and also that it is not an already existing mark. In particular, this examination ensures the following are key considerations:
Whether the relevant mark is prohibited under any law for the time being in force.
Whether the registration of the particular trademark will create confusion or deception due to duplicity of the existing trademark or the existence of similar trademarks.
Whether the mark is not opposed to the public policy or does not contain any sign which is not acceptable.
This examination is done centrally at the head office in Mumbai.
Step 3: The registrar, after reviewing the application and examination of all the evidence of use and distinctiveness, decides whether the application for registration should be approved or not. If approved by the registrar, he publishes the application in Trade Marks Journal, an official gazette of Trade Marks registry, which is updated weekly on the official website. The purpose is to inform the public about the proposed trademark registration. The advertisement in the journal typically includes details like the trademark, the goods and services it applies to, the applicant’s name etc.
Step 4: After publication of an application in the journal, any person can file an opposition within four months from the date of publication. In such cases, the opposition proceedings take place in the respective office of the Trade Marks registry.
Step 5: As per Section 21, in opposition proceedings, a copy of the notice of opposition is served to the applicant who must file a counter statement within 2 months from the date of service of notice. If the counter statements are not filed then the application is considered abandoned. A copy of the counter statement is served to the opponent. After this both the parties are called upon to present their evidence on which they seek to rely. Then, if the parties desire for a hearing, the registrar gives them the opportunity of being heard and then makes a final decision. However, the decision of the registrar was appellable to the Intellectual Property Appellate Body. But, now after April 2021, the decision is appealable to the High Court.
Step 6: Under Section 23 of the Trade Marks Act, 1991, when the application for trademark has been accepted then the Registrar shall register the trademark within 18 months of filing of an application and the trademark shall be registered as to the date of making of the application.
Then the registrar shall issue to the applicant, a certificate of registration in the prescribed form under the seal of the Trade Marks Registry.
Powers of registrar
The registrar possess the following powers:
With respect to the application:
A registrar is bound to register appeals, petitions and applications regarding trade marks in India.
The registrar is also tasked with processing applications for new summons or notices or associated services.
He also has power to transfer an order of the tribunals to the civil courts.
The registrar is bound to receive the short date summons and notices.
As per Section 4 of the Trade Marks Act, 1999, he has authority to withdraw or transfer any pending matter before him or to any other officer, with the discretion to decide whether the matter is to be dealt de novo or from the point it was withdrawn or transferred.
He is responsible for receiving the applications regarding the admission, inspection and verification of documents.
Other Powers:
Generally, before the abolishment of tribunals including Intellectual Property Appellate Board (IPAB) in April 2021, all subject matters were presented before the tribunal by the registrar without any delay. But, after the abolishment all the functions are assigned to the country’s Commercial Courts and High Courts. However, if required and directed by the court, the registrar can adjourn any matter at any time and can present it before the court.
Powers of registrar related to proceedings as per Section 127 of the Trade Marks Act, 1999, include power to call witnesses for evidence, administer oaths, enforce attendance, compelling the discovery and production of documents. He also has power regarding procedures following the registration of trademarks. It includes the correction and amendment of trademarks and also changes in name, address or any other personal detail of the registered owner, correction of any error in the details of trademarks or update as to change in ownership or any other relevant changes.
He is charged with implementing orders as to costs that are reasonable and subjected to provisions mentioned under Section 157 of the said Act. He has power to order costs as he thinks reasonable and fair and any other other which shall be executable as a decree of the court.
However, the registrar has no power to award costs in favor or against the party who has appealed to him against refusal of the proprietor of certification of trade mark.
The registrar on the application made to him may review his own decision made in the prescribed manner.
Intellectual Property Appellate Board
Intellectual Property Appellate Board (IPABI) was a specialized tribunal in India which used to handle appeals and legal disputes regarding intellectual property rights including patents, designs, copyright, trademarks and geographical indications. It was established on September 15, 2003 by the Central Government and it aimed at reducing the burden on regular courts.
The Intellectual Property Appellate Board conducted its meetings in Mumbai, Delhi, Chennai, Kolkata and Ahmedabad. But, its headquarter was located in Chennai. IPAB was established under Section 83 of the Trade Marks Act, 1999.
The IPAB had power to handle appeals against the decisions made by the registrar of trade marks, patents, geographical indications and copyrights. It also heard revocation petitions, cancellation of intellectual property rights and rectification of the registers of intellectual property rights.
Composition of Intellectual Property Appellate Board
IPAB consisted of a chairman, vice chairman and other members as the Central Government may deem fit. Each IPAB bench was made up of one judicial member and a technical member. The chairman could also serve as a judicial member or a technical member of any other bench in addition to their own bench.
Jurisdiction
Appeals against the decisions must have been filed within three months from the date of decision or direction or within such extended time as the IPAB allowed, with cost.
For the following matters, IPAB had authority to hear appeals against the decision of the controller:
Any decision related to termination of patent due to its non-working.
Any decisions related to replacement of applicants.
Decisions relating to framework and amendments in applications.
Decisions regarding names of the inventors.
About correction of clerical mistakes etc.
However, it was abolished by the Indian Government in April, 2021 through Tribunals Reforms (Rationalisation and Conditions of Service) Ordinance, 2021. The functions and powers of IPAB were transferred to the High Courts which are now responsible for hearing the disputes related to intellectual property rights. This step was taken to reduce the backlog of cases and thereby reduce the delay in hearing the disputes.
Factors leading to abolishment of Intellectual Property Appellate Board:
Inefficiency and delays: The IPAB was often criticized for significant delays in resolving cases. Although, it was established to speed up the adjudication process regarding intellectual property disputes. But, the board became overwhelmed with a backlog of cases, leading to prolonged litigation periods.
Underutilization: Over time, it was observed that the IPAB was not fully utilized, handling fewer cases than expected. The IPAB was also plagued by vacancies in key positions, which further hampered its efficiency.
Judicial overlap: The overlap in jurisdiction between IPAB and other judicial bodies led to confusion and increased complexity. The abolishment of IPAB aimed to streamline the judicial process by consolidating IP related cases under the jurisdiction of High Courts.
Recommendation from legal and policy experts: Several legal experts and committees had recommended abolishing the IPAB due to its inefficiencies. These recommendations were influential in the government’s decision to dismantle the tribunal.
Strengthening High Court’s role: By abolishing IPAB, the government sought to enhance the role of High Courts in adjudicating disputes related to intellectual properties.
High Courts
The High Courts of all the states play a significant role in enforcement and adjudication of trade mark laws in India. After abolishment of the Intellectual Property Appellate Board (IPAB) in 2021,the High Courts assumed the role of the IPAB more prominently. The High Court has the following jurisdiction in regard to trade marks:
Appellate jurisdiction
The High Court has the power to hear appeals against the orders made by the registrar of trade marks. It includes the refusal of registration, decisions on oppositions, appeals against cancellation of registered trade marks etc. Now these appeals are directly filed before the High Courts.
Original jurisdiction
The High Courts also have original jurisdiction to try and hear matters related to trade marks. The parties can directly file the infringement and pass off suits before the High Courts. Only six High Courts in India (Delhi, Bombay, Madras, Calcutta, Jammu and Kashmir and Himachal Pradesh) have original jurisdiction and can entertain trademark suits.
International trade mark authorities
United States Patent and Trade Mark Office (USPTO);
European Union Intellectual Property Office (EUIPO);
China National Intellectual Property Administration (CNIPA).
United States Patent and trademark Office (USPTO)
It is a federal agency of the U.S. department of commerce that is responsible for overseeing patent applications and registering trade marks in the United States. The office is led by the Under Secretary of Commerce for Intellectual Property and Director of the States Patent and trade mark Office. The position is currently occupied by Kathi Vidal.
Headquarters: Alexandria, Virginia, USA
Functions:
It grants patents and registers trade marks that help in promoting innovation and protection of intellectual property rights.
The USPTO reviews patent applications to ensure that they fulfill legal criteria which includes utility, novelty and inventiveness.
The office reviews the applications related to trade marks. After approval of a trade mark application, trade marks are registered. It provides legal protection from unauthorized use.
It also provides resources and guidance in regard to trade mark law.
It reviews trade mark applications to ensure they are unique and are not in conflict with existing trade marks.
Further, it guides on U.S. intellectual property laws and policies.
It manages the USPTO’s digital systems to facilitate the submission and processing of trade mark applications.
European Union Intellectual Property Office (EUIPO)
The European Union Intellectual Property Office (EUIPO) was founded in 1994. It is the bureau that is responsible for the registration and management of intellectual property rights including trade marks within the European Union. This office is headed by an executive director. At present the executive director of EUIPO is Joao Negrao.
Headquarters: Alicante, Spain
Functions:
This office is in charge of managing the registration of the trade mark and administration of industrial designs.
It offers alternate dispute resolution to resolve disputes related to intellectual property rights without resorting to litigation.
It also offers online tools for searching and retrieving information regarding registered trade marks and designs.
It engages with global IP offices to harmonize standards and facilitate international property rights.
It offers an online platform for filing and managing applications as well as communicating with offices.
It delivers training, resources and awareness programs to inform stakeholders on intellectual property rights.
China National Intellectual Property Administration (CNIPA)
It was initially established in 1980 as the State Intellectual Property office (SIPO). Later on it was renamed as China National Intellectual Property Administration. It is the government authority charged with the administration and enforcement of intellectual property rights in China. It is headed by Shen Changyu, director of CNIPA.
Headquarters: Haidian district, Beijing.
Functions:
It oversees the registration and protection of trade marks and other industrial designs in China.
It handles disputes related to refusals, oppositions and cancellations of trade marks.
It also conducts educational campaigns to raise awareness about Intellectual property rights and their enforcement among the public.
Conclusion
Trade marks authorities play a critical role in regulation and safeguarding of trade marks. They ensure that trademarks, which are crucial assets of businesses, are accurately registered, maintained and enforced. By establishing a strong legal framework and overseeing the process of examination, application and registration, these authorities preserve the distinctiveness of brands and prevent consumer confusion. Additionally, they handle dispute resolution, manage the cancellation or rectification of trade marks. They also ensure adherence to both national and international regulations.
In short, trademark authorities play a vital role in fostering innovation, ensuring fair competition and safeguarding the identity and reputation of businesses globally. Their work significantly contributes to economic growth by guaranteeing that intellectual property rights, especially trademarks, are respected and enforced.
Frequently asked questions (FAQs)
Who approves trade marks in India?
In India, trademarks are approved by the office of the Controller General of Patents, Designs, and TradeMarks (CGPDTM), which operates under the Ministry of Commerce and Industry. However, the specific division responsible for trademarks is the Trade Marks registry established under the Trade Marks Act, 1999.
What are the advantages of obtaining trademark registration?
Following are the advantages of obtaining trademark registration under the Trade Marks Act, 1999:
It is the prima facie evidence of ownership of the trademarks.
It acts as a significant asset for a business or company and it also contributes to the goodwill generated.
It gives stronger enforceable rights to prevent others from using the trademark in connection with the goods and services for which it is registered.
Trademarks like other assets can be sold, licensed or assigned.
Registration of a trademark usually covers the whole of India. It means it will be valid pan India.
When and why was the IPAB discontinued?
The IPAB was abolished in April 2021 by the Indian Government in April, 2021 throughTribunals Reforms (Rationalisation and Conditions of Service) Ordinance, 2021. IPAB was discontinued due to several reasons but one of the reasons was to reduce the backlog of cases and thereby reduce the delay in hearing the disputes.
How long does it take for a trademark to be registered in India?
The time taken for trademark registration can vary, typically it takes 18-24 months to get it registered without any objection or opposition. However, the trademark application number is issued within one or two days of filing an application.
Can application of trademark be applied online?
Yes, application for registration of trademark can be applied online through official website of IP India ipindiaonline.gov.in. The online system allows for the submission, tracking and management of trademark applications.
How to renew the trademark registration?
In India, registered trademarks are valid for 10 years from the date of application. The owner can renew his trademark for another 10 years by filing a renewal application with the Trade Marks registry and paying the required fee. The registration can be renewed for an indefinite period as long as the renewal fees are paid every 10 years.
Can the registered trade mark symbol Ⓡ be used ?
Registered symbol Ⓡ can be used next to the trademark once the trademark is registered and registration certificate is issued. However, claiming the registered trademark falsely, is an offense. Till the registration is obtained, a person can represent his trademark along with the letters ™ to indicate that the said person claims rights over the trademark.
The status of the trademark application is “send to vienna codification”. What does it mean?
It is one of the initial stages of the trademark registration process where the status in the Trade Mark registry website displays as “Send to vienna codification”. This step is a part of trademark registration process, and is initiated when any trademark comprising figurative elements or logo is assigned a Vienna code by the Indian Trade Marks registry. This is one of the first steps taken by the registry where the trademark comprises a figurative element or logo. The vienna code is assigned based on the nature of the figurative element or logo. Such figurative elements or logos are codified according to the Vienna agreement. Once the vienna codification is done, the status of trademark application is usually changed to “Formalities Check Pass or Formalities Chk Fail”.
This article has been written by Akanksha Singh. It provides an in depth study and analysis of Section 30 of the Trade Marks Act, 1999. The article also discusses the implications of Trade Marks Act, 1999 on the existing trade and business world, along with other relevant case laws concerning Section 30 of the Trade Marks Act, 1999.
Table of Contents
Introduction
The evolution of the concept of trade mark has a fascinating history. In ancient times, the early potters and other artisans that lived in Mesopotamia and Egypt used to label their pottery and other artefacts with certain marks. These marks were used to help people identify the products and ensure their expected quality. Similarly, in medieval times, the members of the European guilds were needed to put a mark on their products. Further, with the expansion of the global network and international trade and economics, the global traders used to put a mark on their products to help customers identify them.
In modern times, the first trade mark law was introduced in 1875. The British Trade Mark Registration Act of 1875 conceptualised the formal registration of a mark as a trade mark, providing legal protection to its usage by the owner of the trade mark. At the international level, one of the first international agreements on the framework for the protection across member countries was theParis Convention for the Protection of Industrial Property, 1883.
With a vast expansion of trade in the global economies, the world witnessed the growth of industrialisation, followed by globalisation. As globalisation progressed, protecting the identity of a particular brand became even more significant. Many international treaties, such as the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS), 1994 and the Madrid Protocol, 1996 came into picture, in order to establish a strong framework for the protection of Intellectual Property Rights across various countries. In India, the Trade and Merchandise Marks Act, 1958 was enacted after the independence of the country, replacing the legislation from British India. However, with the passage of time, India introduced the Trade Marks Act, 1999, to align its Indian legislations on trade mark with the international standards.
What is a trade mark
A trade mark is simply an expression of the identity of a business of products or/and services. A trade mark enables a certain product or service of one business to be differentiated from those of other such similar products or services offered by other businesses. In other words, a trade mark is simply a mark or a sign that is capable of being distinguished from other such products or services. A trade mark can be represented in the form of any unique design or symbol. A trade mark can consist of a name, slogan, a logo or even a combination of all of these elements. In the dynamic and ever-evolving economies, trademarks play a crucial role in building businesses and helping them establish their reputation and standing in the market. This helps customers in easily identifying a product or service of their choice based on its quality or reputation. Thus, a trade mark helps bring loyalty and trust to customers.
A trade mark derives its protection by the Intellectual property rights. Intellectual property rights are a set of intangible assets belonging to an entity or a person. They consist of all the intellectual creations such as invention or contribution to any contemporary field of knowledge. A trade mark can be registered or unregistered. A registered trade mark provides its owner an exclusive right over the usage of a mark in relation to the product or/and services offered by the owner. This exclusive usage of a particular mark to identify a business prevents customers from getting misled or confused.
Meaning of trade mark under the Trade Marks Act, 1999
Trade Marks Act of 1999 is a comprehensive piece of legislation concerning intellectual property rights related to trade marks. The Trade Marks Act, 1999 formalised the registration process of a trade mark by outlining a detailed procedure, starting from application, examination, publication of the proposed trade mark, any opposition by any other person or entity to the use of such trade mark, and finally registration. Under the trade marks Act, 1999, Section 2(1)(zb) defines trade marks as a mark capable of being represented graphically and which is capable of distinguishing the goods or service of one person from those of others and may include shape of goods, their packaging and combination of colours Under the Trade Marks Act, 1999, various types of trademarks were recognised such as service marks, certification marks and collective marks.
Significance of trade mark
The significance of trade marks dates back thousands of years. A trade mark provides a business with a unique identity that helps it stand out in the marketplace. It allows customers to determine the origin of a particular product or service, and ensures they receive products or/and services of the expected quality. A trade mark acts as a brand of the company and a strong brand name helps a business gain a significant value through powerful trade mark presence. Additionally, a registered trade mark offers legal defence to the owner of the trade mark against any unauthorised usage by other entities. Thus, by guaranteeing that only the registered owner may use the mark, it helps in maintaining the credibility of a business.
Types of trade mark
A trade mark can exist in the form of a symbol, design, sound, smell, or a combination of all of these elements. There are various types of trademarks. They are given below:
Word mark
When certain phrases, words or slogans are used as a name of a brand, then it is referred to as a word mark. For instance, the word “Coca-Cola” is an example of a word mark.
Figure marks
Further, when a certain design and logos or its combination is used as a brand name, then it comes under the figure marks. For instance, the logo of “Apple” is an example of a figure mark.
Composite mark
Furthermore, one of the types of a trade mark is called a composite mark, which consists of both liberal and metaphorical language. There are trade marks which are identified based on the three-dimensional marks on the products such as the packaging of the property that sets it apart from other similar products. For instance, the logo of “BMW” is an example of a figurative mark.
Colour mark and sound mark
Apart from these, there are also colour marks and sound marks. When a specific colour or colour combination is used to distinguish a good from other, then such a trade mark is called colour marks. Similarly, when a distinctive sound is associated with a particular brand name, the sound becomes the trade mark of the brand and such trade mark is called sound mark. For instance, the purple colour of “Cadbury products” is an example of a colour mark, and the McDonald’s: The “I’m Lovin it” sound is an example of a sound mark.
Effects of a registered trade mark
One of the key features introduced in the Trade Marks Act, 1999 is the provision for the registration of trade marks by their owners. However, the registration of a trade mark is not mandatory. At the same time, getting a trade mark registered provides multiple benefits and legal protection to the owner of any trade mark. A registered trade mark provides legal protection to the owner of the trade mark with respect to its usage.
Significant effects of having a registered trade mark
A registered trade mark provides exclusive rights to the owner of the trade mark with respect to the products or/and services that have been registered. This prohibits other similarly situated products or/and services from using any deceptively similar, confusingly similar or identically similar marks. This protection is usually terms as ‘exclusive rights’
Furthermore, a registered trade mark acts as a legal protection for the owner. It enables an owner of a registered trade mark to seek legal remedy against any of the entities who infringes the usage of a registered trade mark.
Other effects of having a registered trade mark
Getting a trade mark registered establishes a brand reputation and recognition among the customers using the products or/and services. This develops a brand recognition that indicates a certain level of quality and standard.
A registered trade mark also acts as a deterrent against potential trade mark infringements and helps in avoiding any confusion or deception among customers of the product or/and service.
An interesting feature of the registration of a trade mark is that it enables the owner of the trade mark to claim trade mark protection not only in India but also in other jurisdictions of foreign countries.
A registered trade mark also protects the identity of any brand in it’s online presence. Thus, an owner of a trade mark can sue or challenge any domain name that is deceptively or confusingly similar to the registered trade mark.
Overview of Section 30 of Trade Marks Act, 1999
Under the Trade Marks Act of 1999, Section 30 of the Act deals with the limitation that exists on the rights conferred by a registered trade mark. The Section is titled as ‘limits on effect registered trade mark’. This Section draws a boundary between what constitutes an infringement of a registered trade mark and what cannot be treated as an infringement of a registered trade mark. Section 30 of the Trade Marks Act, 1999 basically explains that the rights conferred by registering a trade mark are not unrestricted and are limited in nature. Section 30 emphasises on certain implications of these limitations on the benefits derived by a owner of a registered trade mark. These implications apply to both owners and customers.
These implications are showcased based on various legal principles such as the principle of fair usage, the principle of honest practice and the principle of balance of interests, all of which is discussed later in this article in detail.
Principle of fair use: It allows the legitimate usage of a registered trade mark by any third parties without violating the rights of the trademark owner. This covers the use of one’s own name or location, comparative advertising, and descriptive usage.
Moreover, the purpose of Section 30 of the Trade Marks Act, 1999 is to ensure that trademark rights do not unjustly impede lawful economic activities by striking a balance between the interests of trademark owners and those of other companies and persons. Furthermore, by placing a strong emphasis on honest usage, the Trade Marks Act, 1999 makes sure that trademarks are not used in a way that unfairly competes with the registered trademark of any owner or misleads its customers.
Let us now look at a detailed explanation of each clause of Section 30 of the Trade Marks Act, 1999.
Clause-wise explanation of Section 30 of Trade Marks Act, 1999
The clauses and Sub-sections of Section 30 of the Trade Marks Act, 1999 provide the limitation on the exclusive rights given to the owner of a registered trade mark. This part of the article gives a detailed explanation to each of the clauses in Section 30 of the Trade Marks Act, 1999.
Sub-section (1) of Section 30 states that “Nothing in section 29 shall be construed as preventing the use of a registered trade mark by any person for the purposes of identifying goods or services as those of the proprietor”. This Section basically emphasises on the fact that Section 29 of the Trade Marks Act, 1999 is not absolute in nature. The limitations on it are provided under the clauses of Sub-section (1) of Section 30 of the Trade Marks Act, 1999.
Clause (a) of Sub-section (1) of Section 30 says that a usage of a registered trade mark by other entities would not constitute infringement if the usage is in accordance with the honest and fair practices laid down in the industrial or commercial matters.
Clause (b) of s of Section 30 says that the usage of a registered trade mark by other entities would not constitute infringement if the usage is not in a manner to take unfair advantage of or be detrimental to the unique character or reputation of the registered trade mark.
Sub-section (2) of Section 30 discusses circumstances when usage of a registered trade mark would not constitute infringement at all.
Clause (a) of Sub-section (2) of Section 30 says that there would be no trade mark infringement of a registered trademark if the registered trademark has been used to describe the product or service. The description can include details about the type, quality, quantity, intended use, value, its origin, the time when it was made, or other details about the product or service.
Clause (b) of Sub-section (2) of Section 30 says that in case the usage of a trade mark is restricted by the registration, that is, there have been certain conditions laid down to the usage of the registered trade mark, merely using it outside those limits would not be constituted as infringement.
Clause (c) of Sub-section (2) of Section 30 discusses the continued usage of a trade mark on certain products that have already been introduced into the market by the trade mark owner or with their consent. It talks about situations where a person dealt with products that previously used the registered trade mark of the owner or someone authorised by them, or where the trade mark had been originally applied to the usage of certain products by the owner or someone authorised by them.
Clause (d) of Sub-section (2) of Section 30 says that a trade mark is not infringed in case when the owner of the trade mark or any person authorised by such owner of the trade mark had previously used the trade mark in connection with their services. Additionally, an infringement cannot be there in case when the purpose of the usage of the registered trade mark is to accurately imply that the services were provided by the owner of the trade mark or any person authorised by such owner of the trade mark.
Clause (e) of Sub-section (2) of Section 30 of the Trade Marks Act, 1999 points out an interesting fact. It says that it would not be an infringement of a registered trade mark by a person who owns two or more than two registered marks that are very similar or identical, that is, they are exactly the same, then using one of such trade marks would not infringe the rights of the others.
Further, Sub-section (4) of Section 30 says that it would not constitute an infringement of a registered trade mark when a person who had legally acquired the products bearing the registered trademark sells or deal in those products otherwise, irrespective of any subsequent assignment of the trade mark or even a prior marketing of the products by the owner of the trade mark. Further, Sub-section 4 of Section 30 says that Sub-section (3) of Section 30 does not apply to a circumstance where there exists legitimate reasons for the owner of the trade mark to restrict the future dealings in the products in general. This is applicable where the condition of the products have been modified or impaired after they were put on the market.
Interplay between Sections 29 and 30 of the Act
Section 29 and Section 30 of the Trade Marks Act, 1999 should usually be read together to completely understand the intent of the provisions laid down under Section 30 of the Trade Marks Act of 1999.
On one hand, where Section 29 deals with the conditions that would be considered as an infringement of a registered trade mark, while, on the other hand, Section 30 says that nothing contained in Section 29 shall be considered as infringement if usage of the registered trade mark is in accordance with the provisions laid down under Section 30 of the Trade Marks Act, 1999.
Thus, it is necessary to understand the dynamic interplay between Section 29 and Section 30 of the Trade Marks At, 1999 in order to understand how the trade mark rights are provided to the owner of the trade mark and simultaneously, how it has been constrained or restricted in order to protect the business rights of other individuals or entities such as companies or businesses.
The interaction between Section 29 and Section 30 of the Trade Marks Act, 1999 creates a balanced framework for protection of trademarks and right of fair usage. While Section 29 defines situations under which the usage of a trademark is considered infringement, Section 30 outlines limitations and defences available to individuals and other entities against allegations of infringement. Broadly, section 30 ensures that the provisions laid down under Section 29 do not restrict the legitimate uses of a mark and do not overreach the rights of other persons to use a mark. This allows for the fair and honest use of a registered trade mark that is considered necessary for the purpose of business.
Section 29 punishes the unfair and dishonest use of a registered trademark. However, Section 30 allows usage of a registered trade mark if the use is honest and fair. In order to safeguard customers from misinformation and misunderstanding, Section 29 ensures that trademarks are trustworthy indicators of the origin of products and services. By permitting the honest and non-deceptive use of one’s own name or address, comparative advertising, and descriptive usage, Section 30 encourages healthy market competition.
The use of a similar mark causes confusion, Section 29(2) may consider it to be an infringement. Nonetheless, Sub-section 2 of Section 30 allows the descriptive use of a mark to specify the nature, standards, or other features of products or services. A registered trademark may also be used in comparative advertising provided it is done honestly and with the appropriate indication of the purpose, as permitted by Clause(b) of Sub-section (1) of Section 30.
Explanation to Section 29 of the Trade Marks Act,1999
The dynamics between Section 29 and Section 30 of the Trade Marks Act, 1999, it is important to understand what Section 29 says. Section 29 of the Trade Marks Act, 1999 is titled as ‘Infringement of registered trade mark’. It basically defines the circumstances when a registered trade mark would be considered infringed.
According to Sub-section (1) of Section 29, using a mark that is identical to or deceptively similar to a registered trademark in the course of business by someone who is neither the registered owner nor using it with permission is considered infringement of the trademark. This use must be made in a fashion that is likely to lead people to believe the mark belongs to the trademark owner and in connection with products or services for which the trademark is registered. It is infringement if someone sells comparable goods or services using a mark that is remarkably similar to the registered trademark, leading consumers to believe the goods belong to a particular brand.
Further, as per clause 2(a) of Section 29, a trade mark is considered to be infringed under the following circumstances:
The mark concerned is found to be identical to that of the registered trade mark if, firstly, the products or/and services are similar and the mark identically resembles the registered trade mark.
Secondly, a mark is considered to have been infringed if the products or/and services are similar or identical to that of the products or/and services of the business of the registered trade mark, and the mark is simply similar to the registered trade mark.
Thirdly, a trade mark infringement would be considered if the products or/and services are identically similar while the mark is also identical to the registered trade mark.
All of these three situations would be considered as infringement if it is likely that such a trade mark would create confusion among the customer.
Sub-section (3) of Section 29 says that in cases where there is an identical product or service and an identical mark, then the court has the right to presume that it is likely to cause confusion on the part of the customers or public in general.
Clause(c) of Sub-section (4) of Section 29 says that for an infringement to happen, it is also a criteria that the registered trade made alleged to have been infringed shall have a reputation in India and use of such mark by other entities are without any due cause, that provides unfair advantage of the reputation of the brand or is detrimental to the distinctive character or reputation of the registered trade mark.
Sub-section (5) of Section 29 says that a registered trade mark is considered as infringed by a person when such person uses the registered trade mark as part of his brand name or affixes the name of the registered trade mark to its products and uses such mark in its business or its advertising.
In addition, Sub-section (7) of Section 29 talks about circumstances wherein the law presumes that the individual or other entities such as companies should have known or knew that they were not permitted by law to use the registered trade mark. It says when a person uses a registered trade mark on product labels, its packaging, its advertisements or official documents, without the prior approval by the holder of the trade mark.
Further, Sub-section (8) of Section 29 talks about the infringement through advertising a trade mark. It says that a trade mark advertising can be considered as an infringement if it unfairly exploits or contravenes the ethical business principles, destroys the distinctive quality of the brand or damages the reputation of the registered trade mark.
Additionally, Sub-section (9) of Section 29 covers not only the physical representation of a registered trade mark but it also covers the verbal usage of a registered trade mark in a manner that can potentially confuse the customers or the general public. In such a case, even the verbal expression of such registered trade mark would be considered as an infringement.
Doctrine of fair use
Under the legal framework, the doctrine of fair use finds an important place. The doctrine of fair use has been incorporated in various legislations in order to balance out the rights of all the stakeholders involved in the transaction. The principle of fair use establishes the balance between the exclusive rights of the owner of the registered trade mark and the right and interest of the other entities such as companies and businesses, and public in general. It keeps a check on the exclusive rights of the owners of the trade marks and the public in general in accessing the creative works available to them.
The doctrine of fair use takes into account a few significant factors that are necessary to constitute a fair usage of a registered trade mark. While ensuring that the usage of a registered trade mark is fair, it needs to be looked into whether the use of the mark is creative, descriptive or merely an exact production of the mark. It also needs to be ensured that any such usage of the registered trade mark does not come at the cost of the registered trade mark, that is, it does not harm the reputation or distinctive character of the registered trade mark. It is important to understand that the principle of fair use is not a licence to use in order to infringe the right of the owner of a registered trade mark. Each time, if there is a claim of a fair use as a defence, the party claiming such defence must prove it. Whether in a given circumstance, the doctrine of fair use applies or not depends on the facts and circumstances of each case.
Types of fair use
The doctrine of fair use can be broadly divided into two categories. They are descriptive fair use and normative fair use. Let us know about each of them in detail below.
Descriptive fair use
Descriptive use of a registered trade mark comes under the principle of fair use. A descriptive fair use means usage of a registered trade mark in a descriptive manner. It means the usage of a registered trade mark in relation to goods or services that, in any way, conveys information about the kind, quality, quantity, intended use, value, geographical origin, timing of the production of goods or provision of services, or other characteristics of goods or services. This is known as trade mark descriptive usage, or in other words, descriptive fair use. The legal doctrine of ‘descriptive trade mark fair use’ allows for the common use of words or images found in the other registered trade marks in their most basic descriptive contexts.
The law of trade mark allows for descriptive fair use. It means that it allows a person or an entity to describe a good or service using a brand name of any third party as a descriptive word instead of utilising it as a trade mark. For example, when a person utilises a term or an expression that has become or is too generic in nature and is no longer distinct or unique, then it comes under a descriptive fair use of a trade mark.
Criteria for a fair use to be called descriptive
A fair use of a registered trade mark would be considered descriptive if the word or expression rather than as a trade mark should have been used in a descriptive manner. Further, such a word or expression would have been used in a descriptive and general manner. Most importantly, the word or expression used should not have caused any confusion among the public in general or the customers. Additionally, the usage of such words or expressions must not destroy or hamper the distinctive character or unique reputation of any registered trade mark.
Normative fair use
The normative fair use refers to the use of a trade mark in a way that complies with the established conventions and standards, including in the promotion or advertisement of a product or a service. In law, the normative usage of a registered trade mark does not infringe upon the rights of the owner of the trade mark in any manner. Under this usage, the name of the owner of the registered trade mark is displayed or named, making it a fair normative use of the trade mark. This kind of usage does not infringe upon the right of the owner of the registered trade mark.
Criteria for a fair use to be called normative
There are certain essential elements that are required to be fulfilled for a fair use to be considered normative. A usage of a registered trade mark becomes normative if the products or/and services are such that it cannot be easily identified without the usage of any of the trade marks. The proportion of trade marks used to identify the product or/and service is negligible or minimal. The usage of the trade mark is such or is in such a manner that it does not make an implication of sponsorship by the owner of the trade mark.
Landmark cases on the doctrine of fair use
Hawkins Cookers Ltd. vs. Murugan Enterprises (2012)
In the case of Hawkins Cookers Ltd. vs. Murugan Enterprises (2012), the Hon’ble High Court of Delhi was faced with an issue over the usage of the brand name ‘Hawkins’ on packaging of gasket. The owner of the registered trade mark of ‘Hawkins’ found that the producers of gasket named Murugan Enterprises have utilised the expression ‘suitable for hawkins pressure cookers’ on the packaging of its gaskets, and have focused on the label of ‘Hawkins’ in red in order to draw the attention of the customers to the product. According to Hawkins, this was clearly a trade mark infringement as the gaskets were universal and would fit any pressure cooker, and the name ‘Hawkins’ was unneeded and deceptive. Nonetheless, the court decided in favour of Murugan Enterprises. The court asserted that the gasket was compatible with Hawkins pressure cookers and thus, the usage of the term ‘Hawkins’ was only descriptive and instructive. Thus, here, there was a descriptive fair use of the trade mark.
Somashekar P. Patil vs. D.V.G. Patil (2018)
In the case of Somashekar P. Patil v. D.V.G. Patil (2018), Somashekar P. Patil sued his brother D.V.G. Patil, claiming passing off and trade mark infringement since the defendant used the identical ‘Patil Fragrances’ name. The plaintiff possessed a trademark registration for “Patil and Patil Parimala Works”. To prevent the defendant from using the same name, the plaintiff first sought an ex-parte injunction. But the defendant successfully contested this order, claiming that the usage of the surname “Patil” was legitimate and had no intent to deceive the public or the customers.
Taking into account the circumstances, the court determined that the defendant had a right to use his own name, which is a common last name in the area. The court further undermined the case by noting that both parties were related and members of the same family. The Hon’ble High Court of Karnataka overturned the order of injunction. The Hon’ble High Court of Karnataka stressed on the fact that using one’s name authentically, even if it is found to be identical to an already registered trade mark.
Government E-Marketplace vs. Unilex Consultants & Ors (2022)
In the case of Government E-Marketplace v Unilex Consultants & Ors (2022), a suit was filed by the Government E-Marketplace (GeM) against Unilex Consultants and Others, and other multiple entities for using the mark GeM in the name of their domain and URLs of their websites. Government E-Marketplace (GeM) is India’s national public procurement portal. The other entities were using the mark GeM while they were offering services in relation to registration on the portal of Government E-Marketplace. The contention put forth by GeM was that these other entities were using the mark GeM in order to mislead the customers by creating a false impression that the government platform had some connection with these entities. The petitioner sought an injunction order against the other entities, to restrict the continued usage of the mark GeM. In response, the defendants argued that the usage of GeM was descriptive and educational since it correctly represented the services they provided. They maintained that the public was not likely to get confused or tricked. In its interim ruling, the court acknowledged the validity of the claims put forth by Government E-Marketplace and issued an injunction barring the defendants from using the “GeM” mark on their websites and domain names. The court stressed how crucial it is to safeguard government trademarks and avoid confusing consumers.
Defences to trademark infringement
There are several defences available against an allegation of a trade mark infringement under the Trade Marks Act of 1999. The defences are available in order to strike a balance between the rights of the owner of a registered trade mark and the legitimate usage by the other entities.
The following are the defences available under the Trade Marks Act, 1999.
In case the registered owner does not use the registered trade mark for a long considerable period of time, the trade mark can be considered abandoned by the owner of the trade mark. However, the decision of the court always depends upon the facts and circumstances of any particular case.
An alleged trade mark infringer can claim that the trade mark has been used by him/her in good faith, without any intention to deceive the general public or the loyal customer base.
In case a registered trade mark becomes too generic for a given product or service, then it loses the protection of its trade mark.
This means that the alleged trade mark infringer can claim a defence stating that the trade mark has been used to describe a product or a service and not to indicate its origin or source.
It acts as a good defence that the alleged infringer has been using a similar mark before the registration of the trade mark by any other person.
There is no infringement of a registered trade mark if the alleged infringer had a valid licence to use the registered trade mark.
There is no infringement of a registered trade mark if there exists a limitation on the registered trade mark based on a geographical area. Thus, if trade mark infringement has been alleged to have happened outside those geographical limitations, then it could be a good defence to use.
Landmark cases on Section 30 of the Trade Marks Act, 1999
There have been very recent landmark cases which explain the implications of Section 30 of the Trade Marks Act in much detail. Some of the cases also explain the practical implications of the interplay between Section 29 and Section 30 of the Trade Marks Act, 1999. Following are some of the landmark cases that talk about the recent legal developments on Section 30 of the Trade Marks Act, 1999.
Seagate Technology LLC vs. Daichi International (2024)
Facts of the case
The case of Seagate Technology LLC vs. Daichi International (2024)revolves around maintaining brand identity and integrity. Seagate is an industry leader in data storage. Seagate filed a case in the Hon’ble High Court of Delhi against the defendant, a company situated in Delhi that was allegedly involved in the importation and rebranding of hard disc drives (HDDs) that were nearing the end of their useful lives and bearing the trade mark of Seagate.
Issues raised in the case
Whether the act of the defendant constituted trade mark infringement?
Decision in the case
The defendant committed an unlawful act that not only violated the intellectual property rights of Seagate but also tricked gullible customers into buying fake goods. Seagate used Sub-section 4 of Section 30 of the Trademarks Act, 1999 in response to the defendant’s infringing act. This section gives trademark owners the authority to stop future sales of their products if they have been altered or compromised after being placed on the market.
Kapil Wadhwa vs. Samsung Electronics Co. Ltd. (2012)
In India, Samsung Electronics Co. Ltd. and Samsung India Pvt. Ltd. are the registered proprietors and trademark owners of the “SAMSUNG” mark. They were the respondents in this case. The Respondents had first brought legal action against Kapil Wadhwa and a few other distributors, who were the appellants in this case for bringing in Samsung printers from authorised dealers in outside markets and offering them for sale in India without permission at a lower cost.
Issues raised in the case
Whether the parallel imports of products by respondents at a lower price in India violated the trade mark rights of appellants?
Decision in the case
Based on the claims of the Respondents, that the Appellants violated their trademark rights in India, a Delhi High Court Single Judge Bench ruled in favour of the Respondents. The Delhi High Court’s Division Bench rendered this ruling in response to an appeal of the Single Judge’s decision. The Division Bench of the Hon’ble High Court of Delhi approved parallel imports into India, subject to the appellants posting specific disclaimers in their stores. India’s trademark laws now have a clearer understanding of the concept of international exhaustion owing to the ruling in this case. However, the Delhi High Court’s Division Bench’s decision would only be persuasive in nature in other jurisdictions until the Supreme Court rules in a case that is identical to this one.
Renaissance Hotel Holdings Inc. vs. B. Vijaya Sai (2022)
The Renaissance Hotel Holdings Inc., a company incorporated under the laws of Delaware, the United States of America, was the one initiating the case before the court. This company is the holder and proprietor of the trade mark and service mark “RENAISSANCE” in relation to various services including hotel, restaurant, catering, bar, cocktail lounge, fitness club and spa. The Company learnt that the respondents were using the name “SAI RENAISSANCE,” completely encompassing the well-known trade mark and service mark “RENAISSANCE,” to operate one hotel in Bangalore and another in Puttaparthi.
Issues raised in the case
Whether the respondents violated the trade mark rights of the apellant?
Decision in the case
The three-member bench consisting of L Nageshwara Rao, BR Gavai, and BV Nagarathna ruled in favour of Renaissance Hotel Holdings, stating that there is a phonetic and visual similarity between the words “RENAISSANCE” and “SAI RENAISSANCE.” The supreme court ruled that the lower court made a mistake in its judgement and lacked sufficient justification to overturn the judgement of the trial court. The trademark being the same but the products and services being different was another matter the court addressed. The Supreme Court emphasised that the High Court failed to apply two fundamental standards of interpretation. Firstly, no portion of the provision should be interpreted in isolation, rather, secondly, the contextual interpretation and the textual interpretation must coincide.
A recent case before the Hon’ble High Court of Delhi resulted from the request of the Plaintiff, LOTUS, for relief from the trade mark of the Defendant, LOTUS SPLASH, for violation of their registered trademark, LOTUS.
Issues raised in the case
Whether the usage of the LOTUS SPLASH trademark violates the trade mark rights of the plaintiff?
Decision in the case
The court found that there was a prima facie allegation of infringement since the trademarks were identical, but an in-depth analysis of the Defences under clause(a) of Sub-section 2 of Section 30 of the Trade Marks Act, 1999 produced an unexpected conclusion. The Plaintiff proved there was trademark infringement. However, the court rejected the request for an interim injunction. The decision of the court rested on the finding that the usage of LOTUS SPLASH trade mark by the defendant constituted a necessary component or essential character of their product and, thus it qualified as a valid defence under clause(a) of Sub-section 2 of Section 30 of the Trade Marks Act, 1999. This landmark case represents the balancing of rights of the owner of the registered trade mark and the other entities making a fair and honest use of the trade mark which is similar.
International legislation on trade marks
The International legislations have helped shape the framework of cross border implications of the protection of Intellectual Property Rights. In this part of the article, three most significant international conventions are discussed.
Paris Convention for the Protection of Industrial Property 1883.
In the year 1883, the Paris Convention for the Protection of Industrial Property was signed. It acted as a foundation for the establishment of a mechanism for the protection of international intellectual property rights. This convention brought together several countries to work towards protection of intellectual property such as copyright, trade mark, and patents. The Paris Convention for the Protection of Industrial Property put forth the principle of national treatment. The principle of national treatment required the member countries to treat the rights of the foreign nations and their own intellectual property rights in the same as if it was their own. This was required to provide equal protection and opportunities to foreign nationals.
Additionally, the convection also provided a protection called ‘Right to Priority’. This principle allowed an applicant to file an application for Intellectual Property Right in one country and then subsequently file it in another country, within a specified period of time. The subsequent filling would be considered as if it was filed on the same date as of the first filing and thus, this ensured that the applicant who filed an application first is given property right over any other subsequent application by any other person or entity. Further, the convention aims to bring harmonisation and promote cooperation among member states and thus it encourages member states to work together for the harmonisation of their domestic laws with the Paris Convention for the Protection of Industrial Property.
Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) 1994
The Uruguay Round of the General Agreement of Tariffs and Trade led to the formation of the Agreement on Trade Related Aspects of Intellectual Property Rights, 1994. Agreement on Trade Related Aspects of Intellectual Property Rights, 1994 is a multilateral agreement that sets a minimal level of protection for intellectual property rights. It forms a core agreement under the agreements of the World Trade Organisation. The Agreement on Trade Related Aspects of Intellectual Property Rights provides minimal levels of protection for trade secrets, patents, trademarks, copyrights, and geographical indications. It mandates that member nations guarantee these rights with sufficient and efficient protection. Further, in order to safeguard intellectual property rights, the agreement on Trade Related Aspects of Intellectual Property Rights requires strong enforcement measures, including both civil and criminal penalties. For any dispute resolution related to intellectual property, the World Trade Organisation (WTO) Dispute Resolution body takes the matters.
Madrid Protocol 1996
The Madrid Protocol of 1996 is an international treaty convention that aimed to simplify the process of filing and registration of any trade mark in multiple countries. The administrative body under the Madrid Protocol is the World Intellectual Property Organization (WIPO). To protect their trademark in several nations that have ratified the Madrid Protocol, applicants may submit a single worldwide application referred to as the Madrid application. The World Intellectual Property Organisation (WIPO) upholds a Global Registry of Marks, a database that tracks global registrations and applications. Under the Madrid Protocol, foreign registrations are accorded the same consideration as domestic registrations.
Conclusion
The world of trade mark law is a complex interplay of striking a balance between creative rights and fair competition. The field of intellectual property rights (IPR) has developed significantly over the years, becoming so important to the growth of the global economy that it now plays a key part in it. Many wealthy nations have unilaterally reinforced their rules and regulations in this area since the early 1990s, and many more were about to follow suit. The successful conclusion of the World Trade Organization’s Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) improved IPR protection and enforcement to the level of a serious international commitment at the multilateral level as well. Additionally, newer types of safeguards are emerging, especially in response to the exciting advancements in science and technology. There are advantages and some costs associated with the new global IPR system. Intellectual property is a broad field. It is widely recognised that it has been recognised for a considerable amount of time in its expression as Intellectual Property Rights, including Copyright, Patent, Trademark, and Design.
Frequently Asked Questions (FAQs)
What are the criteria for choosing a good trade mark?
A good trade mark shall consist of a unique name based on the words or design associated with a product or a service. It must not be a common or generic word or a name. It is also necessary to conduct a market research before choosing a word as a trade mark.
Who can apply for a trade mark?
Any person who claims to be a proprietor of a trade mark used or proposed to be used by him is eligible to apply for the registration of a trade mark in the manner as prescribed by the registration authorities. The application for registration of a trade mark shall consist of trade mark, goods and service, name and address of applicant, with the power of attorney, and the period of use of the mark.
What are the legal benefits derived after the registration of a trade mark?
A registration of a trademark grants its owner the only right to use the mark in connection with the products or services for which it is registered, to denote this usage with the sign (R), and to file an infringement lawsuit in the relevant national courts. Nonetheless, any restrictions included in the register, such as usage restrictions, may apply to the exclusive right. Additionally, this exclusive right does not conflict with one another in cases when two or more parties have registered marks that are identical or strikingly similar as a result of exceptional circumstances.
Who profits from having a registered trademark?
A registered proprietor of a trade mark has the power to develop, maintain, and safeguard the reputation of his goods and services. He may also prevent other merchants from using his trademark illegally, file a lawsuit for damages, and order the removal of any infringing items or labels. Fees for trademark registration and registration protection generate income for the government. Attorneys provide assistance to business owners in the areas of trademark selection, registration, and protection in exchange for payment. When purchasing products and services, buyers and, in the end, consumers have alternatives from which to select.
Is it mandatory to register a trademark?
Having a trademark registered is not required. Nonetheless, the trademark under registration’s registration serves as first proof of its owner. It is important to remember that unregistered trademark infringement cannot be the subject of a lawsuit. Any individual who passes off products or services as belonging to another person or as services rendered by another person may be subject to legal action for unregistered marks.
What are the methods for registering a trademark abroad, and is it possible for a foreign applicant to assert priority over a previous application?
To submit a trademark directly in the relevant jurisdiction, one may choose to prioritise their mark above a domestic mark or not. The Madrid Protocol serves as a means of facilitating the registration of a trademark in many countries, with each country’s registration having precedence over the others. This is another method of worldwide trademark registration. You have six months to claim this priority. Please be aware that not all nations accept filings through this method and are signatories to the Madrid Protocol.
This article is written by Nishka Kamath. It will give the readers interesting insights on Order 9 Rule 9. The major focus would be on understanding the legal implications of Rule 9, the conditions under which a suit can be resorted (most particularly under Order 9 Rule 9), and the rights of the parties when it comes to such matters. Further, this article has numerous case laws for better grasp of the topic for the reader. Moreover, a specimen on Order 9 Rule 9 is shared along with the FAQs.
Table of Contents
Introduction
Did you know in civil litigation, if a party to the case does not show up in the court they could face serious repercussions? Well, in India, all such civil disputes and civil litigation are governed by the Civil Procedure Code (CPC), 1908, thus ensuring that justice is served in a fair and systematic manner. Among the various rules, regulations and provisions mentioned in the CPC, there is one Order 9 which plays a significant role in guiding the court’s actions, especially, when one of the parties does not appear in front of the court during the hearing of the case.
Here is an interesting fact-Order 9 Rule 9 of the CPC explicitly talks about the scenario that would arise when a plaintiff does not appear and their case gets dismissed by default. But did you know, there are also some conditions under which such a suit can be restored? This rule acts as a balance between judicial efficiency and providing the plaintiff a second chance to move forward with their case, thus ensuring that mere absence or minor procedural issues do not come in the way of justice. So, let us dive deep in understanding how this fascinating rule works!
What is Order 9 Rule 9 CPC, 1908
Order 9 Rule 9 of the CPC, that discusses decree against plaintiff by default bars fresh suit, reads as-
“Where a suit is wholly or partly dismissed under Rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for his non-appearance when the suit was called on for hearing, the Court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit.”
Further, it also states that-
“No order shall be made under this rule unless notice of the application has been served on the opposite party.”
Understanding Order 9 Rule 9 CPC, 1908
In simple language, Order 9 Rule 9 states that if a suit is partly or fully dismissed under the provision of Order 9, Rule 8 (discussed in the upcoming passages), the plaintiff is impeded, perhaps, prevented from filing a fresh lawsuit related to the same cause of action. However, the plaintiff may apply for the order of dismissing the suit to be set aside. If the court opines that the plaintiff showed sufficient cause for his/her non-appearance when the suit was called on for hearing, the court shall pass an order stating that the order for dismissal is set aside. Moreover, the court shall appoint a day for proceeding with the suit.
Further, the second pointer states that no order shall be made under this rule unless the opposite party (i.e., the party against whom the application is made) has been served a notice (or informed) of such an application. This will ensure that both the parties have fair and square a chance to present their case and address their issues.
Well, when you hear Order 9, Rule 8, you may wonder what exactly is it? Want to know? Read further!
What is Order 9, Rule 8 of the CPC, 1908
Order 9, Rule 8 talks about what would be the outcome when only the defendant has appeared in the court of law. It says that upon calling the suit for a hearing, when only the defendant is present and the plaintiff is absent, then the court, at its discretion can pass an order that the suit thus filed be dismissed.
There is an exception here. It states that, if the defendant admits the claims or any part thereof, the suit will not be dismissed, rather, the court will pass a decree (meaning, an official order) against the defendant based upon such admission. Further, the court may dismiss the other, remaining part of the suit, meaning, except the part that the defendant admits to be guilty of, the rest of the case shall be dismissed by the court.
Such a provision helps in making sure that the case proceeds in an efficient manner and that the plaintiff’s absence does not cause delay in the court proceedings (considering he/she is absent). Having said that, the defendant also gets a fair chance to admit the claims and does not have to go through the trouble of a full trial. This may also help save the court’s time as the rest of the case is dismissed and there is no need for a full trial to be conducted, thus saving time and resources of the court.
Importance of Order 9 Rule 9 CPC, 1908
In the case of Ravukumara Raj Appa Row vs. Veera Raghava Raya Choudary (1966), which was a lawsuit filed in the Andhra High Court, it was mentioned that Order 9 Rule 9 of the Civil Procedure Code, 1908, states if there is sufficient cause submitted to the court and the court agrees to that explanation, then the order for dismissal of suit can be set aside. Just like that, under Order 9, Rule 13, if the court opines that the defendant had sufficient cause for non-appearance in the court when the suit was called for hearing, then an ex parte decree passed against the defendant can be set aside.
Therefore, if there is a sufficient cause which prevents a party from appearing in the court when the case was called for hearing, there can be a similar sufficient cause for a plaintiff not appearing when his/her application under Order 9 Rule 9, is called for. The same can be the case for a defendant when his application under Order 9, Rule 13 is called. Further, it is stated that, if such cause arises out of “practical difficulties and exigencies” that an ordinary person, even a plaintiff or defendant to the case could, then the court may take the cause into consideration and exercise its discretion to set aside the dismissal, thus allowing the case to be restored and proceed further.
It was also mentioned that if there was no provision like that of Order 9 Rule 9, the plaintiff would have undergone irreparable loss considering the rule of dismissing the suit, even when there was sufficient cause for his/her non-appearance. Thus, if there was no such Rule wherein a plaintiff could make another application for the dismissal of his/her suit, the loss would be quite significant. This would be the same as if Order 9 Rule 9 never existed or if there was no application made in the first place.
Considering all this, it is reasonable to reach an inference that the legislature, while passing the Civil Procedure Code in 1908, intended to prevent such a loss for the individual against whom the court had decided (passed an order for dismissal for non-appearance). Having said this, there are a few other pointers on importance of Order 9 Rule 9 that one should study and they are as follows:
Aids in restoration of a previous application
Under Order 9 Rule 9, the plaintiff gets a chance to apply for restoring a suit that was previously dismissed for non-appearance, provided reasonable cause is shown to the court and the court affirms it. Such a provision helps in ensuring that any individual who had a valid reason for not showing up in the court when the case was heard gets a second opportunity to have his/her case heard. This, in turn, helps the plaintiff’s case from being dismissed permanently.
Helps in setting aside an order that dismissed restoration of application
If the plaintiff provides sufficient cause to the court and the court opines that the reason was valid, it has the right to review the dismissal of the suit under Order 9 Rule 9.
Providing fair and just treatment
Order 9 Rule 9 acts as a mechanism for not dismissing cases simply because the plaintiff was unable to attend the court’s hearings due to some unforeseeable situation. By having such a provision under the CPC, the lawmakers (who enacted such a provision) ensured that the plaintiff does not pay a hefty price for non-appearance and that his/her right to be heard is preserved. Such a provision leads to a fair and just judicial procedure and acts as a balance between equity and efficiency when it comes to cases in civil litigation under the CPC.
Intention behind Order 9 Rule 9 CPC, 1908
Now we know, Order 9 Rule 9 addresses situations wherein the court may proceed with the case even in the absence of the plaintiff. This Rule states that if the plaintiff does not appear on the fixed day of hearing, the court, upon its discretion, may dismiss the suit; unless, the plaintiff upon being summoned shows there was sufficient cause for non-appearance.
The main intention behind such a Rule is to make sure that the parties diligently pursue their cases and appear in front of the court as and when required. Further, the dissection of the court as to whether or not the suit should be dismissed can be exercised if the plaintiff does not successfully provide reasonable justification for his/her non-appearance. Having said that, if the plaintiff provides valid reasons, the court may set aside the order of dismissal and proceed with the suit, thus giving a fair chance to the plaintiff.
Understanding the application process and its nature under Order 9 Rule 9 CPC, 1908
An application which is filed under Order 9 Rule 9 must not be treated as an interlocutory application. An interlocutory application can be defined as a request made on behalf of one party asking the court to pass an order to assist with the preparation or procedure of the court. Well, it is not a fact unknown, that court proceedings barely go smoothly, thus, interlocutory applications play their part in allowing to seek order to help keep the case right on track and protect one’s right in some or the other way.
This application does not, in any manner, resemble a pending suit. By its nature, an application filed under Order 9 Rule 9 is an independent application which is registered as an independent miscellaneous judicial case.
Limitation period for filing a second application for restoration
Generally, one can file an application for restoring a case under Order 9 within 30 days from the date of dismissing the case under Article 122 of the Limitation Act, 1963. But one may wonder what exactly would be the limitation period for filing an application under Order 9 Rule 9, wherein the case was dismissed for default?
Well, in the case of Brijmohan vs. Raghoba (AIR 1932 Nag 101), it was held that an application for restoration which was dismissed for default could be entertained under the inherent powers granted to the court under Section 151 of the CPC. Further, it was also stated that Section 151 did not come under the purview of the Limitation Act. Having said that, it does not mean the party can be carefree and guilty of laches, meaning they have to show integrity and be sincere and not approach the court with dirty hands.
Whereas, in the case of Komalchand Beniprasad vs. Pooranchand Moolchand (1969), when the suit is set aside by referring to Section 151, the question of limitation does not occur. Further, this Section does not pertain to any application, neither does it talk about any procedure for any application, rather it is a provision that mentions the inherent powers enstated in the court to act ex debito justitiae (meaning, from or as a debt of justice, as a matter of right) and thus can be set aside without any such limitation period.
Remedies under Order 9 Rule 9 CPC, 1908
Application to set aside the dismissal
If a suit is dismissed under Order 9, Rule 8 and the plaintiff wants to question the same, an application can be filed under Order 9 Rule 9. The application will be for setting aside the dismissal, here, the plaintiff has to show sufficient cause for non-appearance when the case was called for hearing. If the court is satisfied that the reason was just and a fair chance can be given to the plaintiff, the court can set aside the dismissal order and appoint a day to proceed with the suit.
Application for restoration of original application
If an application under Order 9 Rule 9 is dismissed for default, the plaintiff under Order 9 Rule 9, read with Section 141 of the CPC has the right to file another application to restore the original application. In such matters, the plaintiff is obligated to provide proper reasons for being absent when the original application was scheduled to be heard.
Postponing the hearing
The plaintiff can also appeal the restoration of the original dismissed application under Clause (c) of Order 43 Rule 1, of the CPC as both the remedies (i.e., Order 9 Rule 9 and Clause (c) of Order 43 Rule 1) are concurrent and can be restored simultaneously, and that none of them excludes the other. If an appeal is filed, the court can postpone the hearing until the application under Order 9 Rule 9 is decided. Please note: The scope of both these proceedings are quite distinct.
Specimen of application under Order 9 Rule 9 CPC, 1908
APPLICATION FOR RESTORING SUIT WHICH WAS DISMISSED IN DEFAULT OF THE PLAINTIFF ONLY.IN THE COURT OF MR. PATEL, LEARNED CIVIL JUDGE 1st CLASS, BOMBAY HIGH COURTApplication no. 45 of 2024Under Order 9 Rule 9 of the Civil Procedure Code, 1908, inCivil Suit no. 34 of 2024Mr. Peter Griffin ………………………… (Plaintiff)vs.Mr. Glenn Quagmire …………………… (Defendant) Application for restoring of the suit dismissed in default on 25th September of 2024 Hon’ble Sir/Madam,The Plaintiff most respectfully sheweth:That the above noted civil suit was fixed for hearing for the purpose of arguments on 25th September of 2024.When the aforementioned case was called up for hearing at 11 a.m., the Plaintiff, Mr. Peter Griffin, went to call his Counsel Mr. Cleaveland Brown, who was not available at his seat during that time, and was in Court Room no. 004 arguing another matter which was informed by the Plaintiff to the Court.However, the Learned Court dismissed the same in default of the Plaintiff.GROUNDSThat the Applicant and the Counsel could not put up an appearance before the Court on 25th September of 2024, due to the arguments put forth by the Plaintiff’s Counsel in Court Room no. 004 related to another matter.That the non-appearance of the Plaintiff was neither willful or intentional, but for the good and sufficient reasons hereinabove stated.That the Interest of justice therefore, demands that the case may be restored to its original position so that the substantial dispute involved in the case can be adjudicated upon on its merit by this Learned Court. PRAYERIt is, therefore, most respectfully prayed that the Learned Court allow this application and that the aforementioned case be restored to its original position in the interest of justice. It is also prayed that the Learned Court may further pass any such orders as it deems fit considering the facts and circumstances of the case. ApplicantThroughMr. Cleaveland Brown(Advocate, High Court) Place : _____________________Dated : _____________________Affidavit in support of the application to be filed.
Case laws on Order 9 Rule 9 CPC, 1908
Smt. Seba Agarwal & Ors. vs. Kapildeo Narain Agarwal & Ors. (2004)
In this civil revision application, a judgement for dismissing an appeal given by the 1st Additional District Judge, Sahebganj was questioned by the petitioners (i.e., the plaintiffs in the case) in the Jharkhand High Court. The petitioners had filed a suit for praying relief for granting mandatory injunction for vacating the suit house and for a permanent injunction to restrain them from disposing of the plaintiffs.
In this case, the petitioners contended that their previous attorney did not take proper legal actions/steps to ensure smoother proceedings, and that, due to such negligence the prior suit was dismissed. Then, the petitioners did not succeed in recalling this order and were suggested to file a miscellaneous case under Order 9 Rule 9. However, the plaintiffs failed to appear in front of the court due to some unforeseeable circumstances, whereas, one witness appeared on behalf of the defendant. Considering this, the court passed an order against the petitioners and stated they are “lethargic litigants” and did not approach the court with “clean hands” thereby dismissing the miscellaneous case. Aggrieved by this, a miscellaneous appeal was filed in the District Court, Sahebganj, and it was disposed of by the judge, reiterating the same reasons.
Then, the petitioner approached the High Court wherein the learned counsel for petitioners submitted that these aforementioned orders of the court are “unsound, improper” and that they were passed in an illegitimate exercise of jurisdiction. As per the counsel, only the sufficient cause for non-appearance under Order 9 Rule 9 must be taken into consideration, whereas, the courts did not mention the same in the order of dismissal. Instead, the courts considered the past conduct of the petitioners and acted hypothetically giving reasons that were not relevant under Order 9 Rule 9. The learned counsel appearing for the defendants contended that the order was apt and legal and the plaintiffs have been quite negligent in not attending the proceedings of the court, on several dates.
The Jharkhand High Court held that there was no finding as such by the court on sufficient cause for non-appearance and that the courts were thereby influenced by “improper and extraneous considerations” while passing the order of dismissal and thus set aside the previous order. The court also stated that the hearings be expedited as the case was very old and preferably be disposed within a span of 6 months. But, the court also ordered the petitioner to pay a sum of ₹7500/- to the defendant for the loss and inconvenience caused to them. Further, the court directed that the same must be paid within a period of one month from the date the order was passed.
P.D. Shamdasani vs. The Central Bank Of India Ltd. (1937)
In this case, the Bombay High Court reached an inference that an application for restoration should only be rejected if there is a gross negligence or carelessness on the side of the plaintiff (i.e., whose suit has been dismissed). Here, in this case, the suit of the plaintiff was dismissed considering the non-appearance, but the plaintiff reappeared later on the same day with a justifiable reason for being absent at the time of the hearing. The Bombay High Court reached an inference that if the plaintiff has a reasonable explanation for non-appearance and has appeared on the same day with the justification, the court has the right to exercise its discretion in the plaintiff’s favour and restore the case. Such a judgement sheds light on the importance of providing a just and fair treatment allowing cases to be restored when the plaintiff has valid reason for his/her absence.
Rama Shankar vs. Iqbal Husain (1932)
In this case, an application under Order 9 Rule 9 for restoration of a suit was dismissed by the Judge of Small Cause Court, Aligarh, stating that the plaintiff was called twice but did not appear in front of the court. However, the plaintiff, immediately filed an application for restoring the suit and swore to an affidavit on the same day that he was present in the court when the case was called up for hearing but went to search for his counsel. However, when he came back, he discovered that the suit was dismissed for default. The Allahabad High Court held that the justification was apt and reasonable and thus set aside the dismissal order.
M. Venkatachariar vs. Moulvi Mahammad Faizuddeen Sahib (1939)
In this case, the Madras High Court stated that when a petition under Order 9 Rule 9 had not been dismissed for default, there would be no petition to reopen the previous order and that if a petition lay at all, it would presumably be a review petition. Here, an application suit was dismissed, a case was filed and the same was restored by the Madras High Court. However, the court faced a question here- Whether or not Order 9 was applicable to suits or whether by reasons under Section 141 (miscellaneous proceedings) was applicable to applications made under Order 9 itself.
Here, the judge stated that, an application filed in accordance with Order 9 Rule 9, is not an original matter, meaning it cannot be treated like a new case, as the original suit is no longer on the file. Rather, it talks about an independent suit which has to be ascertained on the basis of new evidence and will be not so related to the original case.
Salar Beg Saheb vs. Karumanchi Kotayya (1925)
In this case, a question directly came in front of the Madras High Court which was, whether or not a second application for restoring the previous application (i.e., the first application) which was dismissed for default, was legally valid under Order 9 Rule 9. The court held that the second application was, indeed, competent. However, the same could not be filed under Order 9 Rule 9. Such a distinction sheds light on the fact that while a second application is allowed to be filed, it cannot be based on the same rule that was previously stated; rather, it has to be based on a different legal provision.
Shekhar Verma vs. Raj Gupta and Ors. (2018)
In this case, Justice Raj Mohan Singh, in the Punjab-Haryana High Court mentioned that it is a settled principle that if any suit is dismissed under Order 9 Rule 8, the party cannot file a fresh suit under Order 9 Rule 9. The only exception being that the order for dismissing the suit is set aside. Then, any second or additional suit on the same cause of action or with some minimal changes in the suit, would not create any inclusion regarding cause of action, thus it is forbidden to file a new suit under Order 23 Rule 1 (4).
The court reached an inference that simply creating an illusion with respect to a new cause of action by making some slight changes in the application, like cancelling a licence of the defendant and insead issuing a legal notice will not give rise to a different cause of action as the relief thus sought will be the same (i.e., mandatory injunction for possessing the premises from the defendant, as mentioned in the case).
So, if both the suits share identical relief claims and have more or less the same parties involved, then the second suit would also not be allowed to be filed. This, in turn, helps stop the plaintiff from avoiding the legal procedures by making some minimal changes in the plaint. Such a judgement sheds light on the importance of finality in dismissing particular cases and the need for a more stringent legal procedure during civil litigation, which in turn will help ensure that correct procedures are followed by all the parties to the case.
Conclusion
We can safely conclude by saying that, Order 9 Rule 9 of the Civil Procedure Code, 1908, plays a crucial role in maintaining efficiency and fairness in the civil litigation process. Further, it makes sure that, if the court has dismissed the plaintiff’s case on the ground of non-appearance and the plaintiff had reasonable justification for the same, the plaintiff has the right to be heard and the court can revoke the dismissal if it deems fit. This ensures that the court has provided the plaintiff a just and fair chance to put forth his/her genuine reasons and proceed with the case thereby not being punished for non-appearance and preserving their right to be heard and making sure justice is accessible to all.
Frequently Asked Questions (FAQs)
Can a fresh suit be filed after dismissal of the previous suit under Order 9 Rule 9 of the CPC, 1908?
No, once the court has dismissed a suit under Order 9 Rule 9, the plaintiff is forbidden from filing a new suit on the same cause of action. But, the plaintiff can, under this Rule, file for restoration of the same suit, provided he/she satisfies the court with sufficient cause and reasonable justifications.
What is ‘sufficient cause’ for non appearance under Order 9 Rule 9 of the CPC, 1908?
The term ‘sufficient cause’ for non-appearance means the date upon which the plaintiff did not show up in the court at the time of the hearing and that was made a ground for proceeding ex parte, which cannot be stretched to rely upon other circumstances anterior in time. Under Order 9 Rule 9, there is a provision which states that an order for setting aside the dismissal of a suit can be passed, if the plaintiff provides the court with ‘sufficient cause’ stating, rather justifying his/her non-appearance.
Is there a limitation period for filing an application for restoration of a dismissed suit under Order 9 Rule 9 of the CPC, 1908?
Yes, under Article 122 of the Limitation Act, 1963, a new application for restorating a dismissed suit under Order 9 Rule 9 has to be filed within 30 days from the date of dismissal of the original suit.
For more details on this, please refer to the ‘Limitation period for filing a second application for restoration’ heading.
Every organisation needs people to function properly. In the case of companies, the people who act as functioning heads are called directors. The Companies Act, 2013 in India is the statute that defines and governs all the management of corporate entities. Liability of directors is a very crucial part of corporate governance, which also includes criminal offences committed by directors during their official seat. As we all know, a company is a separate legal entity, and the company is wholly responsible for the actions it takes, but in various scenarios, directors are liable for the company’s actions, which we are going to discuss in this article. This article aims to provide provisions of the Companies Act 2013 that impose criminal liabilities on directors, abstract important sections, their implications, and penalties. Directors are the decision-makers of any company so it is important to explain their duties and liabilities under the Companies Act, 2013. The Companies Act has several clauses that impose duties on directors, such as the responsibility to disclose honest and accurate statements in the prospectus, the obligation to file annual returns of the business, and the duty to maintain the financial books in the prescribed format, among others.
Who is a director
Directors and shareholders are the two main groups of people in any company. Shareholders are the real owners of the company, while directors are the representatives of the shareholders, which take control of the day-to-day affairs of the company. As we all know, this company is not a real person; therefore, it needs people to govern it. The people who govern the company are called directors, who have vast amounts of powers that can be used for their gain. Liability arises when there is a misuse of these powers by directors; the more clean and clear term used by the judiciary to define these directors is “Offices in Default”. It is the duty of directors to work in the best interest of the company; when they do not work in the best interest of the company, they are held liable under the Companies Act, 2013, which would raise a civil liability or criminal liability depending on the loss that has been done by directors. Directors are also held liable for their acts of misconduct or wilful misuse of powers. Actions that give rise to criminal liabilities are a breach of fiduciary duties, acts that are ultra-vires, Negligent acts, actions that are mala fide, etc.
Provisions of the Companies Act 2013 that dictate criminal liabilities of directors
Mis-statements in the prospectus (Section 34)
Any prospectus issued by any authorised person that contains any statements that are untrue or misleading in form or context, then the person issuing the prospectus shall be liable for such misstatements and directors in default will be liable for punishment, which could be imprisonment for 6 months to 10 years. Misstatement in the prospectus creates criminal liability on issuers, which in the case of the company are mostly directors. Untruth in prospectus leads to loss or damage to the shareholders, which is the direct responsibility of directors.
Statements in the prospectus that are untrue or misleading in form or context authorised by any person are punishable under this section but he proves reasonable ground that such statements are true until the filing of the statement. If the issuers are proposing that the statements in the prospectus are true and not misleading, then he has to prove that the given prospectus are true and are not misleading. A prospectus issued in good faith but is untrue or misleading may or may not amount to criminal liability.
Prohibition on issue of shares at discount (Section 53)
According to this section, if any company issuing shares at a discount price shall be void. Also, violation of this section by any company is subject to a fine of not less than one lakh rupees but could be extended to five lakh rupees. Every employee or officer who’s in default may face punishment with imprisonment for a term that may extend to six months or a term that is not less than one lakh rupees but extends to five lakh rupees or both.
Power of company to purchase its own shares (Section 63)
As per Sub-Section (11) of this provision, any company that fails to comply with this section, whoever employee or officer involved in this default shall be punished with imprisonment for a term which may extend to three years or a fine of not less than one lakh rupees or both. This provision also provides rules and regulations for companies to buy back their shares or any other securities.
Failure to submit an annual return (Section 92)
This provision requires a company to prepare annual returns in the prescribed format, to be submitted at the end of each financial year. The company must also file these returns with the Registrar of Companies within sixty days, as stipulated under Section 403. Failure to comply with this requirement may result in the officer or employee in default being subject to imprisonment for up to six months, a fine ranging from fifty thousand rupees to five lakh rupees, or both. Additionally, the company itself may be fined up to fifty thousand rupees.
Issue of debentures by the company (Section 71)
Debentures are a very common method used by the company to raise funds for their various projects. Debentures work at a particular rate of interest and can be converted (wholly or partly) into shares as per the will of the debenture-holder and promise to pay principle as well as interest on demand of the debenture-holder. According to this section, if a company fails to return capital generated through debentures, then the debenture-holder can file a petition to the tribunal, which, after proceedings, may pass an order to the company to return the principal amount and interest on it to the debenture-holder without any further delay.
Upkeeping of minutes of meetings of the company (Section 118)
This section mandates that every company must preserve the minutes of meetings conducted during its business operations. This includes meetings such as annual general meetings (AGM), board of directors meetings, resolutions, and decisions made via postal ballot. These records must be maintained for a minimum of thirty days. Sub-Section (12) of this section imposes liability on any person found guilty of tampering with the minutes of the company’s meetings, making them subject to imprisonment for up to two years, or a fine ranging from twenty-five thousand to one lakh rupees, or both.
Maintenance of proper books of account by the company (Section 128)
As per this provision, every company is required to maintain accurate and detailed books of account that record all financial information for each financial year in the prescribed format. If the managing director, chief financial officer, or any officer in default fails to comply with this requirement, they may face imprisonment for up to one year, a fine ranging from fifty thousand rupees to five lakh rupees, or both.
Vacation of office of director (Section 167)
This section outlines the circumstances under which a company director may vacate their office, such as being absent from all board meetings, disqualification under Section 164 of the Act, or violation of Section 184 while managing the company’s affairs, as determined by a court or tribunal. If an officer knowingly continues to hold office after vacating it, they will face penalties, including imprisonment for up to one year, a fine ranging from one lakh rupees to five lakh rupees, or both.
Loan to directors (Section 185(2))
This section prohibits directors, or any person whose guarantee has been provided by a director, from obtaining loans or any security against loans from the company, except as otherwise permitted by the Act. If a director or such a person takes a loan or secures it in violation of this section, they will face penalties, including imprisonment for up to six months, a fine of not less than five lakh rupees, which may extend to twenty-five lakh rupees, or both.
Loan and investment by Company (Section 186(12))
This section allows companies to invest in or provide loans to other companies and individuals, following the guidelines set out in Sub-Section (2) of Section 186. If a company intends to invest in another company, it cannot acquire more than sixty percent of the shares of any subsidiary company without first holding a Board of Directors meeting. Additionally, any loan provided under this section must not have an interest rate lower than the prevailing yield of a one-year, three-year, five-year, or ten-year government security that is closest to the loan’s tenor. If any officer violates the provisions of this section, they may face penalties, including imprisonment for up to two years and a fine ranging from twenty-five thousand to one lakh rupees.
Disclosure of interest by the director (Section 184(4))
As per this section, every company director must disclose any interest or involvement they have in other companies, corporations, firms, or associations of individuals at the first Board meeting of each financial year. If a director enters into a contract or arrangement with another company, they must inform the Board of their interest. Additionally, if a person becomes a director and subsequently enters into a contract or arrangement, they must disclose their interest or involvement at the next board meeting. What will happen when directors fail to comply with these disclosure requirements? They may face penalties, including imprisonment for up to one year, a fine ranging from fifty thousand to one lakh rupees, or both.
Conclusion
At last, this article explains that every company and every office in the company must comply with the provisions, rules, and regulations of the Companies Act, 2013, and if any person violates any such section, shall be punished with said provisions of this act. Criminal liability is a very effective tool that checks on the company to operate in a legitimate way. Directors should be aware of their duties and responsibilities to avoid any criminal liability under the Companies Act, 2013.
This article has been written by Oishika Banerjiof Amity Law School, Kolkata and has been further updated by Nimisha Dublish. This article provides an analysis on the topic of whether watching porn is a crime in India or not. The article delves into various factors that led to this crucial question. Various case laws that have helped understand what amounts to the illegality of watching or even circulating porn have been discussed further in this article.
Table of Contents
Introduction
The term ‘sex’ has been a very controversial topic in Indian society. The term is often linked to a person’s immoral and salacious values. It is frequently related to the immorality and indecency of an individual. Indian laws aim to criminalise selling, distributing and publicly displaying obscene sexual or pornographic content. The term “pornography” can be defined as the reporting or portrayal of sexual actions in order to produce sexual excitement through books, films, or other media. Pornographic websites, pornographic material created using computers, and the use of the internet to download and transmit pornographic films, texts, photographs, and photos, among other things, fall under this category. Put simply, watching porn in India privately does not fall within the ambit of an offence under Indian penal laws but there are certain limitations to the liberty of watching porn that the Indian judiciary has laid down time and again.
The question that always remains at the heart of the debate is whether the government can restrict citizens from publishing or viewing pornography or whether this would amount to an unjustified violation of basic human rights/freedom. Many traditional debates on pornography concern religious conservatism and feminism. They believe that porn lacks intellectual merit and is harmful to viewers. They sincerely believe that it harms the social fabric of society at large.
However, the contradiction to this says that pornography is a great expression of art and makes a positive contribution to sexual freedom and liberation. The article aims to discuss how a balance could be attained between what is publicly moral and what comes under individual liberty. The article further dives into the legal aspect of whether the laws made on pornography are viable and sufficient enough to deal with the present scenario of Indian society.
What is pornography
In today’s era, pornographic content is present everywhere and has become pervasive. This is because of the fast-growing internet access and technological trends that make it super easy to access these kinds of content. The word pornography is derived from the Greek words ‘porne’ and ‘graphos’. The word ‘porne’ stands for prostitute, female captive or harlot. The word ‘graphos’ stands for writing about or description of. Pornography incorporates any kind of video, picture or movie that contains sexually explicit content or acts that are deemed to be indecent by the public at large.
Legally, pornography is something that is also obscene. Pornography is mainly the depiction of an act, not the act itself. This means that it is an artistic way to showcase the act. Pornography has been further divided into two types nowadays, namely softcore pornography and hardcore pornography. However, softcore pornography does not depict the actual penetration, while hardcore does.
Its origin can be traced back to ancient civilisation. At that time, erotic art and literature were prevalent. In ancient Greece and Rome, the depiction of sexual art on walls and pottery was considered to be aesthetic and erotic. Similarly, many ancient religious places also have various sculptures depicting sexual activities as part of religious and social narratives. India’s cultural history has various references to sexual expression that are evident from writings such as the Kamasutra and the depiction of erotic sculptures in religious places. Despite this, Indian society’s attitude towards pornography is highly influenced by morality and religious conservatism.
It can be seen that the evolution of pornography majorly accelerated when the printing culture came into being. It was at that time that multiple copies of an expression could be made and circulated in public. The advanced printing technology allowed a wider distribution of explicit content. As time passed, advancements in photography, filmmaking and digital technology made pornography more accessible to the public than ever before.
From a legal perspective, defining pornography is not easy. It has been a challenging task. The legal status of the term pornography on a global level varies widely. Some prefer the implementation of stringent laws, while others promote freedom of expression while keeping in mind certain boundaries. However, the advancement of internet access has made it further complicated to determine and disseminate pornography across borders.
Comparison between pornography and obscenity
Both the terms pornography and obscenity are used interchangeably. However, it is important to know that obscenity is a wider term than pornography.
S. No.
Basis
Pornography
Obscenity
1.
Definition
Pornography is explicit content that is created with the intention of stimulating sexual desire.
Obscenity is not a form of content; rather, it is a quality or state of something that appeals to prurient interests and lacks literary, political, artistic or scientific value.
2
Legal status
It is legal or regulated, depending on the jurisdiction under which it comes.
It is typically considered to be illegal
3
Main focus
It focuses on the sexual content and its impact on the viewers.
It is concerned with public morality and decency.
4
Criteria for determining
It involves the analysis of the intent and context behind the content, keeping in mind its impact on the viewers.
It is determined by community standards and context.
5
Freedom of Speech
It balances both freedom of speech and societal values.
It often tends to restrict the right to freedom of speech because of the context of the content.
Internet presence of pornography
Pornography has significantly grown its presence on the internet. It constitutes 30 percent of all the online content present on the internet. This percentage is very high as compared to the contribution of other content on the internet. The data is only about the content available on the surface web. There is another side that we all know, i.e., the dark web. It is alleged that a substantial portion of pornography exists on the dark and deep web as well. However, only 10% of this is accessible through conventional search engines. Moreover, these search engines not only contain pornographic content but also illegal and disturbing content, such as child pornography.
In 2005, the volume of searches on the internet for pornographic content surpassed 2 billion. This indicates that there was a high demand for such content at that time. In today’s time, nearly 20% of all mobile searches are related to pornography. It was found in a study that approximately 28,258 users watch porn every second and the number is still increasing. The studies have found that a significant number of adolescents are exposed to pornography at an early age. By the age of 18, almost 90% of boys and 60% of girls have seen pornographic content on the internet. This has raised concerns related to the child’s attitude towards sex, relationships and mental health. Many adolescents get addicted to such content, which leads to the deterioration of their mental health as well.
It has been seen that in around 56% of divorces, there is one spouse who is obsessively involved in watching porn online. It is noticed that most of the time it’s the man who is obsessively into watching pornography online. If we compare this situation to the faithful spouses who haven’t divorced, it can be seen that adulterers are more than twice likely to be involved in watching porn online.
As per Internet Safety 101 organisation, porn sites have more visitors than Amazon, Netflix and Twitter combined every month. It was also reported that 88% of porn content contains violence against women. With every passing year from 2005 to 2013, the keyword ‘teen porn’ has been searched so many times that the number has tripled to 5,00,000 per day.
Effects of watching pornography
Excessive consumption of pornography can lead to unusual expectations related to real-life sexual relationships. This, in turn, leads to dissatisfaction and unrealistic beliefs about sexual intimacy.
Viewing pornography regularly may lead to addiction. This addiction starts to interfere with daily life, relationships, and responsibilities.
When a person gets addicted to pornography and is regularly exposed to explicit sexual content, he/she might become desensitised to sexual stimuli.
When an adolescent is exposed to this world of idealised and unrealistic body types in pornographic videos, this can lead to low and poor self-esteem issues as well.
There is a correlation between huge pornography consumption and an increased rate of declining mental health.
Some genres of pornography depict violence and aggression, which could potentially influence attitudes towards violence and consent.
Excessive porn addiction may lead to social withdrawal, isolation and difficulty in healthy interpersonal relationships.
Pornography and Indian laws
Certain sexually explicit, pornographic, or obscene images that are “lascivious or appeal to the prurient desire” or “tend to deprave and corrupt humans” are punishable under Indian law. The facts and criteria set out in the following legislation decide whether such activities are legal, prohibited, or punishable:
However, while these laws specify the events and situations that trigger punishment, they do not define “pornography” or “obscenity” precisely and specifically. This causes uncertainty when determining whether a person’s activities, such as the ownership, creation, or distribution of pornographic content, are illegal because not all pornographic material is obscene and hence receives varied, or frequently no penalty. The two terms have different subjective meanings that have changed over time with changing society and mindsets. Furthermore, there is the issue of how the word “sexually explicit” is interpreted, which determines the type of punishment a person receives.
Information Technology (IT) Act, 2000
Many countries have banned and penalised pornography. However, there are some who haven’t done this yet. As far as the Information Technology (IT) Act, 2000, is concerned, it has neither banned nor legalised pornography. However, it aims to restrict or prohibit the viewership and downloads of pornographic content.
The transmission of photographs of “a private part of any person without his or her agreement” is covered under Section 66 E. For the same, the penalty is either three years in prison or a fine of not more than two lakh rupees, or both. In the landmark judgement in Justice K. S. Puttaswamy (Retd.) and Anr. vs. Union of India and Ors (2018)., the right to privacy was recently ruled to be guaranteed as a basic right and safeguarded under the Right to Life in Part III of the Indian Constitution. Sharing any material that violates a person’s privacy is consequently a violation of Article 21 of the Indian Constitution.
The publication or transmission of obscene material is covered by Section 67 (described as “any material which is lascivious or appeals to the prurient interest or if its effect is such as to tend to deprave and corrupt persons”). The first conviction carries a sentence of up to three years in jail and a fine of up to five lakh rupees, with successive convictions carrying a sentence of up to five years in prison and a fine of up to 10 lakh rupees.
Publishing or sending anything that depicts sexually explicit acts or conduct is punishable under Section 67A. On a first conviction, the penalty is up to five years in prison and a fine of up to 10 lakhs. The current clause applies since the Bois Locker Room event involved the exchange of modified photographs of girls.
On a first conviction, Section 67B carries a penalty of up to five years in jail and a fine of up to 10 lakhs. This clause encompasses the creation or dissemination of any digital text or photos that show minors “in an obscene, indecent, or sexually explicit manner,” not merely depictions of children in sexual acts or conduct. It’s worth noting that the current situation involves the distribution of indecent or private photos of young girls. As a result, the following section can also be used as a resource. Furthermore, many of the comments and conversations related to obscenity may be included in this area.
Section 79(3) (b) states that if mediators fail to “immediately” remove or immobilise access to offensive material “upon receiving actual knowledge, or on being notified by the government or its agency that any information resides in or connected to a computer resource forbidden by the mediator” was being used to commit unlawful acts, they will not be exempt from liability. Furthermore, according to the Information Technology (Intermediary Guidelines) Rules, 2011, mediators must warn “users of computer resources” not to “mass, modify, publish, transmit, display, upload, update any information that is blasphemous, defamatory, obscene, grossly harmful, harassing, pornographic, libellous, pedophilic, invasive of another’s privacy, hateful, ethnically offensive,” and “harm minor in any way.”
Cyber pornography in India
In simple terms, cyber pornography is the act of creating, displaying, importing, distributing, or publishing pornography through the use of cyberspace. Traditional pornographic entertainment has been mostly displaced by online/digital pornographic entertainment since the advent of the internet. Cyber pornography is illegal in several countries and allowed in others. This is a grey area of the law in India, as defined by the Information Technology Act, 2000, where it is neither unlawful nor permitted. Downloading child pornography via the Internet is likewise punishable under the Information Technology Act, 2000.
Child abuse, aggression against women, rape, inequity, relationship and family collapse, adolescent criminality, promiscuity, and sexually transmitted illnesses are among the concerns that cyber pornography contributes to. India’s archaic laws have been challenged by cyberspace and the pornographic material disseminated through it. Because of the lack of jurisdictional borders, the massive volume of traffic that the internet can manage, and the possibility for anonymity, there is no way to govern what appears on the web at the press of a mouse button. A cyber cafe owner formerly had no accountability, but after the passage of the Information Technology Amendment Act, 2008, their duties have only grown.
The act of collecting and keeping cyber pornography is not illegal, but if it includes kids, it is punishable by up to five years in prison and a fine of up to ten lakhs. Child pornography on the internet is prohibited. Operation Ore, one of the most well-publicised captures of child pornographers, was launched in May 2002. The FBI sent the British police force credit card information, home addresses of thousands of pornographers browsing a British child pornography site, and email addresses after gaining access to them. Following the arrest of a computer specialist in Texas, an international investigation was launched, and Thomas Reedy was sentenced to 1,335 years in jail for his involvement in a pornography ring. Teachers, child-care professionals, soldiers, physicians, social workers, and 50 police officers were among the approximately 1,300 additional culprits arrested.
Challenges in regulating cyber pornography
It is challenging to regulate cyber pornography. The global internet network is highly decentralised. There is no individual organisation or entity that governs and controls the content published or circulated in India. People tend to use proxy servers, hide their IP addresses and identities in order to access pornographic content on the internet. There are so many websites and servers in India itself on which such explicit content is available. These proxy servers even help people access banned content/website in India. Hence, it is a huge challenge and almost impossible to regulate such a large number of proxy servers.
Even if we succeed in controlling the porn available on the website, it is not the only platform through which explicit content is circulated. There is a technology known as BitTorrent technology. With the help of this, even if the content is banned or inaccessible in India, users can also download the banned pornographic content. EMule and BulletinBoards are yet another way to share and download files and hence, through this source, porn can also be shared. EMule is an open-source used to share files. It started back in 2002 and is used on Microsoft Windows. It is also a free application. BulletinBoards is yet another way of sharing and uploading content virtually.
Role of internet intermediaries in cybercrime
An entity that operates as a facilitator of the flow of data on the internet is known as an intermediary. These intermediaries play a crucial role in regulating the content, which includes pornography. So in order to understand the roots from where such content is circulated, it is essential to know about how an intermediary functions, its roles, what it is, and its duties, liabilities and responsibilities as well. In reference to Internet intermediaries, it can be Telecom Service Provider (TSP) or Internet Service Provider (ISP). These provide internet services to the users and can also host a web page or provide a space on the servers to store data. They play a vital role in shaping and forming society, especially for those who are heavily dependent on the Internet for all sorts of communication and entertainment.
Indian legislators felt it was important to define intermediaries in the legislation. Section 2(1)(w) of the IT Act defines an intermediary as any person who has received the information or communication on behalf of the other person and stores or shares the records or services for the record. The definition of intermediary covers telecom service providers, internet service providers, search engines, online auction sites, online marketplaces, web hosting service providers and cyber cafeterias.
The role of these internet intermediaries is not restricted to the above. They also have certain duties to fulfill.
Duties/responsibilities of internet intermediaries
The Information Technology Act, 2000, has not directly defined the duties or responsibilities of an intermediary but there are certain duties that can be derived from the essence of the Act and can reasonably be drawn from a basic human perspective.
First and foremost, it is the duty of the intermediary to moderate and monitor user-generated content on the internet. A robust system must be in place to prevent the hosting or dissemination of illegal pornography.
It must be ensured that every website and content available on the internet is as per the rules and guidelines prescribed by the central government. The pornographic content that violates such guidelines on the grounds of obscenity and indecency must be put down.
The terms of use of the intermediary must be displayed on the website, especially in cases of access to or usage of services.
Government shall be given adequate assistance by these intermediaries with respect to interception, monitoring or decrypting the information so generated, transmitted, received or stored in any electronic/computer device.
They must not publish or transmit any material that is prurient to the interest of the public and affects the modesty of a person.
Liabilities of an intermediary
The liability of an intermediary is limited only to the extent to which the content is prohibited by law. There are times when these intermediaries really do not have control over the content that is shown through them. It is the actual user who has control over the content. So in these cases, it is up to the user to publish illegal content on websites and intermediaries have no role to play .There’s a debate over the subject of whether it should be the user who uploads explicit content or the intermediary that should be held liable. Ideally, what happens is that it is the user who uploads the content on these online platforms. Intermediaries are just platform providers. It is hard to always keep a check on user activity but at the same time, it is not impossible. But still, it is the user who should be more responsible and aware while uploading something. Therefore, when it comes to who shall be more liable for the act of uploading such obscene content, it should be the user, unless the intermediaries have a considerable amount of editorial control over such uploaded content. Section 79 of the Information Technology Act, 2000, contains certain situations where the intermediary won’t be held liable. These are as follows-
The intermediary has complied with due diligence and guidelines set by the central government.
The intermediary has not conspired, abetted, aided or induced the commission of an unlawful act.
When the intermediary has struck down the illegal content after being notified by the government.
Possible ways to regulate pornography
Age verification method
It is important to implement stricter age verification mechanisms, such as verified accounts that are directly linked to the official identification or biometric authentication of the user. This will ensure that the user is not a minor who is trying to access explicit material online.
Education and awareness campaign
Both parents and children must be educated about the explicit content available on the internet and made aware of what is illegal content and why one should avoid accessing it. They must be educated about the risks and consequences attached to it. Both healthy and responsible internet use practices must be promoted amongst people, especially children. This will not only help them become aware of the potential harm of such illicit content but also mitigate the negative effects of it.
Introduction of special Top-level Domains (TLDs)
The introduction of special Top-level Domains (TLDs) would help in filtering and identifying the content source. TLDs such as ‘.xxx’ or ‘.sex’ or any other TLD that the authorities deem fit would help identify the source more efficiently. This process would further simplify the process for the software that filters content and allows both users and service providers to clearly bifurcate between adult/illicit/explicit/illegal/banned content and other content.
Establishing International standards
Countries must advocate for international cooperation to establish some common grounds, rules, standards and practices to regulate pornography online and ensure that the norms are consistently applied and followed across borders. A special mechanism for cross-jurisdiction enforcement of certain standards must be made to ensure that illegal pornographic content is neither made nor circulated by anyone.
Indian Penal Code (IPC)
Sections 292 and 293 of the Indian Penal Code, 1860 make it illegal to sell, distribute, and exhibit or circulate obscene objects. The Criminal Law Amendment Act of 2013 added Section 354 D to the IPC, which deals with stalking. After the horrific gang rape and murder of victim Jyoti Singh, known as the Nirbhaya case, the Amendment Act of 2013 was passed, introducing a number of changes to the code, including Section 354D. “Monitoring a woman’s use of the internet, email, or any other kind of communication,” is included under Section 354D(b). As a result, gathering images of ladies from their social media profiles would also fall under this category. Conviction under this clause can result in a sentence of up to three years in prison and a fine.
Forgery is defined as “making any fake papers or false electronic record, or portion of a document or electronic record, with intent to inflict harm or injury,” according to Section 463 of the IPC. Forgery is punishable under Section 465 by up to two years in jail or a fine, or both. Section 471 also punishes the use of forged papers or electronic records as real, and it is punishable in the same way as forging a document. Making a fake electronic record would also include making digital changes to an image.
In the case of state of Punjab vs. Major Singh (1966), it was determined that any conduct done to or in the presence of a woman that is indicative of sex in the eyes of humanity is covered by Section 509 of the IPC. This area can be used to cover messages that make lewd remarks about the physique or body of the females whose photographs are distributed in the group. This provision provides for a penalty of up to one year in jail, a fine, or both.
Victims of pornography might use defamation as a means of retaliation. Section 499 of the IPC prohibits producing or publishing allegedly defamatory assertions about a person in the form of words, writings, or visible representations with the goal of injuring that person’s reputation. As a result, men’s motivation to injure someone’s reputation is a prerequisite for an infraction under the provision. If the victims so want, they may file a claim under the same. Defamation is punishable under Section 500 of the IPC by simple imprisonment for a term of up to two years, a fine, or both.
Provisions under Bharatiya Nyaya Sanhita
Section 74: Sexual harassment and punishment for sexual harassment
Under Section 74 of the BNS, showing pornography to someone against that person’s will is considered to be a form of sexual harassment. This means that if someone forces or exposes someone to sexually explicit material without their consent, then the same is considered to be an offence under Section 74 of the Act.
The Section covers the following types of acts:
Unwelcome sexual/physical contact and advances
Request or demand for sexual favours
Showing pornographic content or explicit material against someone’s will/consent.
Making inappropriate remarks or sexual comments to someone
If someone is found guilty of Section 74(1)(iii), i.e., showing pornography against their consent/ will, then the person has to face rigorous imprisonment of up to three years, a fine or both. Rigorous imprisonment demands hard labour and stricter regimes/rules.
In short, Section 74 criminalises showing pornography to someone against their will. If they do so, then the same shall amount to sexual harassment. The provision reflects the seriousness with which the new law deals with unwanted exposure to sexual content.
Earlier, Section 354 of the IPC used to deal with assault or criminal force on a woman with the intention of outraging her modesty. This has now been replaced or re-instated by Section 74 of the BNS.
Section 93: Hiring, employing or engaging a child to commit an offence
Section 93 of the BNS mainly addresses the hiring or employing of a person below 18 years of age to commit offences. The offences here specifically refer to sexual exploitation. The explanation in this section further mentions the applicability of this provision to pornographic content. The Section clearly mentions that it is, first of all, illegal to hire, employ or engage anyone under 18 years of age to commit any offence. This means it is illegal to involve minors in the creation, distribution or any other aspect of sexually explicit material.
If the minor is used to create or distribute pornography, the person who engaged the minor has to face the same legal consequences as if they had committed the crime. The penalties can be in the form of imprisonment or a fine. The Section clearly aims at protecting minors and penalising those who exploit children for sexual content.
Earlier, Section 317 of the IPC used to deal with the exposure and abandonment of children under 12. Now the same has been replaced or re-instated by Section 93 of the BNS.
Section 292 and Section 293: Sale of obscene books, etc.
Obscenity is defined as anything that is lascivious or anything that promotes the sexual desires of a person or appeals to the prurient interests of people. The main criteria to find this is checking whether the material tends to deprave and corrupt the mind/views of the reader or viewer. The definition of obscenity is applicable to materials, including books. Pamphlets, papers, writings, drawings, representations, figures, and electronic content.
It is an offence to circulate, sell, distribute or publicly exhibit obscene materials. Participating in or profiting from any act involving obscene materials is also an offence. If convicted of the offences under Section 292, the first conviction shall be of up to 2 years of imprisonment and/or a fine up to Rs. 5000. For any subsequent convictions, the imprisonment shall be up to 5 years and/or a fine up to Rs. 10000.
However, there are certain exceptions, like representations of ancient monuments or religious textures, that are excluded from this section and are not considered obscene. The materials that are justified for the public good for example those materials that are related to science, literature or art, are also excluded from this section.
Section 293 is for the sale of obscene objects to children. If any object mentioned under Section 292 is fulfilled, then there shall be imprisonment of up to 3 years and a fine of Rs. 2000 for the first conviction. Whereas for subsequent convictions, imprisonment of either description for a period of 7 years and a fine maximum of Rs. 5,000 must be complied with.
Protection of Children from Sexual Offences (POCSO) Act, 2012
POCSO Act, 2012, is a significant legislation aimed at protecting children’s rights and preventing child sexual abuse and exploitation. This Act deals with sexual offences against children, and a kid is defined as a person under the age of 18 under Section 2 (d) of the Act. The POCSO’s Chapter III addresses the use of minors for pornographic purposes, which we are not concerned with in this case. This Act establishes Special Courts to hear cases involving minors. Section 42 of the POCSO is crucial because it states that if an offence is committed under both POCSO and IPC, the offender who is found guilty would face the most severe sentence.
The use of a child or minors for pornographic purposes is punished under Section 14(1) by up to five years in jail and a fine. Furthermore, storage of pornographic material involving a child with the aim of distributing it is punished by up to three years in jail or a fine, or both, under Section 15 of the aforementioned statute.
The Indecent Representation of Women (Prohibition) Act (IRWA), enacted in 1986, forbids indecent representation of women in ads, publications, writings, paintings, figures, and other forms. In December 2012, the Rajya Sabha proposed the Indecent Representation of Women (Prohibition) Amendment Bill, which was forwarded to the department-related Parliamentary Standing Committee for consideration. According to revisions recommended by the Ministry of Women and Child Development, the indecent portrayal of women on digital messaging platforms such as WhatsApp and Skype should be made criminal. The revisions to the Indecent Representation of Women (Prohibition) Act, 1986, were based on recommendations from the National Commission for Women (NCW) and observations from a legislative standing committee.
The Ministry proposed amendments to the definition of distribution to include publication, licence, or uploading using a computer resource or communication device, and amendments to Section 4 to include that “no person shall publish or distribute or cause to be published or cause to be distributed by any means any material that contains indecent representation of women in any form.” The draft law also recommends a punishment comparable to that enacted under the Information Technology Act of 2000, as well as the establishment of a centralised authority under the NCW’s auspices. This body will be led by the Person Secretary, NCW, and will include representatives from the Advertising Standards Council of India, the Press Council of India, the Ministry of Information and Broadcasting, and one member with expertise working on women’s issues.
On 27th July 2021, the government withdrawn the long-pending Indecent Representation of Women (Prohibition) Amendment Bill, 2012 on the grounds that the proposed amendments to the 1986 law stemmed from the fact that it was felt that the amendments were no longer required, as the concerns have since been addressed keeping in view new emerging realities under the Information Technology Rules 2021, the Cinematograph Act 1952 and other provisions of the law.
Determining the legality of watching porn in India
Indian citizens have the right to life and personal liberty under Article 21 of the Indian Constitution. In Kamlesh Vaswani vs. Union of India & Ors. (2016), the Supreme Court of India orally stated that viewing porn in a private room may fall under the Constitution’s right to personal liberty. As a result, no authority can take it away from someone, so long as one is watching porn movies in one’s own home, which is perfectly legal. However, even if it is watched in a private area, watching or storing pornographic content that portrays child pornography, rape, or violence against women is illegal.
In Ranjit D. Udeshi vs. State of Maharashtra (1964), the Supreme Court of India established the Hicklin Test to determine whether the possession and sale of an allegedly obscene book constituted obscene conduct under Section 292 of the IPC. While Section 292 states that “a book, pamphlet, paper, writing, drawing, painting, representation, figure, or any other object” is “deemed to be obscene if it is lascivious or appeals to the prurient interest, or if its effect, taken as a whole, tends to deprave and corrupt persons,” it does not provide any tools for determining what is “lascivious” or “prurient,” or has the potential to “deprave and corrupt persons”. As a result, whether an accused was guilty of their acts in connection with a pornographic work or material, such as its possession and sale, as in the Ranjit D. Udeshi case, remained dependent on whether the work or material was obscene or not. Until 2014, the Hicklin Test was the standard rule for assessing whether work, material, or conduct was considered obscene in India.
The Hicklin test was laid down in Regina vs. Hicklin (1868) back in the 19th Century by a British court. It was laid down as a standard to judge if something is obscene or not. As per this test, something is considered to be obscene if it has the capacity to deprave and corrupt the people’s minds who are vulnerable to such immoral influences. It means that if a publication could lead to the negative behaviour of a person or, in short, corrupt the mind of a person who can be easily influenced, then such a thing can be considered obscene. The main purpose of the Hicklin test is to determine whether a publication, like a book, article, piece of art, etc., is obscene or not. The test is based on the content’s potential effect on its readers. It can be said that the Hicklin test acts as a tool to determine if something is inappropriate for the audience. It mainly focuses on the potential harm the obscene thing could cause to people who are vulnerable to such content.
The Supreme Court, however, in Aveek Sarkar vs. State of West Bengal (2014), rejected the Hicklin Test and instead used the community standard test to establish what constitutes obscenity. Apart from the various provisions of the Indian Penal Code, 1860, the IT Act, 2000 the POCSO Act, 2012 and the IRWA, 1986, this test is still used to determine whether a pornographic activity, work, or material is:
Legal because it is in the public interest, science, literature, art, learning, history, culture, religion, or other objects of general concern, or
Illegal and punishable because it is offensively obscene or sexually explicit.
In a nutshell, here’s a rundown of what’s legal and what isn’t: –
Private adult pornography viewing is legal.
Creating or producing pornographic content of any type is prohibited.
Forcing any woman of any age, whether your spouse or a friend, to view porn is criminal.
Making any male over the age of 18 view porn is legal.
It is illegal to watch, make, or share any type of child pornography.
Sharing links to pornographic movies on any social media platform, including WhatsApp, Facebook, and Instagram, even in private messages, is unlawful.
Watching pornography in a group or in a public location is prohibited.
Indian judiciary’s take on pornography
Kamlesh Vaswani vs. Union of India & Ors. (2016)
In this case, the petitioner filed a Public Interest Litigation (PIL) in order to get pornographic content on the internet banned. On August 29, 2014, the bench granted ASG Mr. L. Nageswara Rao’s request, thereby directing the government to submit an interlocutory application and writ petition to the Cyber Regulatory Advisory Committee since this issue had been allocated to the Committee under Section 88 of the Information Technology Act, 2000. The Court granted an interlocutory application submitted by the Supreme Court Women Lawyers’ Association on June 26, 2016. The interlocutory applications requested that the central government order the Ministry of Communication and Information Technology and the Ministry of Human Resources Development to prohibit pornographic websites from operating.
The petition and the associated story
This ongoing public interest petition at the Supreme Court, filed in 2013 by Indore-based advocate Kamlesh Vaswani (‘the Vaswani petition’ or ‘the petition’), raises the following questions in concern with pornography:
Is it necessary for India to outlaw pornography?
Should those who watch pornography in private be prosecuted as recreational, experimental, exploratory, deviant, or criminal?
Are we to give the state and commercial intermediaries the authority to subject our sexual choices to societal mores as well?
According to Vaswani, the companies that supply us with an internet connection should be accountable for limiting the flood of porn. Vaswani, convinced that the existing law is a band-aid solution to the “growing problem of pornography,” requested the Supreme Court to strike down several sections of the IT Act, 2000 and order the Indian government to draft a national policy and action plan to address the problem of pornography, as well as enact separate, comprehensive legislation.
The Vaswani petition goes far in calling for the criminalization of all forms of pornography usage, whether public or private. Without diminishing the importance of the other problems stated, this prayer, which seeks to outlaw and criminalise all forms of pornography use, poses serious threats to our liberty under Article 21 of the Indian Constitution that must be addressed.
The Supreme Court’s observation
The Supreme Court of India orally stated that viewing porn in a private room may fall under the Constitution’s right to personal liberty and is therefore legal. Thus, no authority can take away such a right except by a procedure established by law.
Ryan John Michael Thorpe vs. the State Of Maharashtra (2021)
In this case, Raj Kundra, the businessman and husband of Bollywood star Shilpa Shetty, had been arrested on suspicions of infidelity and pornography. Many women had filed complaints with the Mumbai Police Department alleging that they were coerced into appearing in the obscene video for Raj Kundra’s app Hotshots, which is presently owned by a UK business’s alleged owner and Kundra’s brother-in-law, Pardeep Bakshi. After a series of arrests and raids, Raj Kundra was arrested. Raj Kundra was charged under Section 420 (cheating), Section 34 (common intention), Sections 292 and 293 of the Indian Penal Code, 1860, the Information Technology Act, 2000, and the Indecent Representation of Women (Prohibition) Act.
Facts of the case
In the present case of Ryan John Michael Thorpe vs. the state of Maharashtra (2021), the petitioner, Ripu Sudan Kundra @ Raj Kundra, had actively participated in marketing pornographic films, and along with other accused, they used to maintain the Hotshots App through his firm Viaan Industries, circulating/publishing it on social media and earning money from it. The company Armsprime Media Pvt. Ltd. was founded by the petitioner Ripu Sudan Kundra @ Raj Kundra for this purpose. As a result, the investigating agency filed an application with the learned Magistrate to search Viaan Industries’ office, which was approved. From his mobile phone and SAN device, 51 pornographic films/movies with the logos of Hotshots and Bollyfame were seized. The police found e-mail messages on the Hotshots app between the petitioner Ripu Sudan Kundra @ Raj Kundra with Pradeep Bakshi, who is his brother-in-law.
Raj Kundra had stated in his bail application, submitted through counsel Prashant Patil, that the prosecution was left to produce a single shred of evidence linking the software ‘Hotshots’ to a criminal offence. According to the investigation agency, the accused was using the Hotshots app to post and stream obscene information. There wasn’t a single allegation in the whole extra charge sheet against the current petitioner (Kundra) stating that he was actively participating in any of the video shoots, according to the bail petition. The petition stated that it was up to the individual artists to decide whether or not to post their material to the concerned app. According to the bail application, the contents of the complaint did not reveal any prima-facie offence against Kundra.
The Bombay High Court while keeping a stay on the bail plea of the petitioners had observed that the arrest of the petitioners by the investigating officer and their remand to police custody by the impugned order dated 20th July 2021 by the learned Magistrate was within the conformity of the provisions of law and therefore, required no interference.
Final decision
On 20th September 2021, in the suspected pornography racket case, a Mumbai Magistrate Court had granted bail to businessman and actor Shilpa Shetty’s husband Raj Kundra and his firm, Viaan Industry’s IT head Ryan Thorpe.
Avnish Bajaj vs. state (NCT) of Delhi (2004)
Facts
In this case, there was a major controversy that arose when an obscene video with the title of ‘DSP girls having fun’ was uploaded on the website ‘bazee.com’. The video was uploaded by Ravi Raj, a student of IIT Kharagpur. The incident happened on the evening of 27th November 2004 and the video was eventually struck down/deleted by 10 a.m. on 29th November 2004. The item was listed on the website and was eventually deactivated within 2 days. The Delhi Police Crime Branch took cognizance and a charge sheet was filed mentioning that Ravi Raj, Avnish Bajaj and Sharat Digumarti (the person handling the content online) were the accused. However, an FIR was lodged against the website for allowing such obscene content for sale. Avnish Bajaj who is the CEO of the website was eventually arrested by the police under the pretext of Section 67 of the Information Technology Act, 2000.
Issues
The main issue of the case was to determine the extent of liability of Avnish Bajaj as CEO of the website. Whether he is guilty of uploading and selling of obscene material on the internet. Also, what are the responsibilities of these intermediaries under the IT Act? Can Avnish be held liable for the actions of a user?
Judgement
A prima facie case against the company is made under Section 292(2)(a) and (d) of the IPC. However, Avnish was not held guilty. Bail was granted to Avnish Bajaj on the condition that he has to furnish two securities of Rs. 1,00,000 each. Certain restrictions, like the prohibition of leaving India without permission and cooperation with the investigation, were also imposed. Justice S. Murlidhar reached the following findings on the issues of the case:
The video that was uploaded was obscene.
The company has committed an offence under Section 292 of the Indian Penal Code and Section 67 of the Information Technology Act because the advertisement of obscene material was done on the website.
No personal case against the Managing Director of the company is made under the Indian Penal Code because no vicarious liability arises under the Indian Penal Code.
Child pornography : offensive or legal
Whether child pornography is offensive or legal in India has been discussed with the help of two case laws as provided hereunder.
P.G. Sam Infant Jones vs. State (2021)
In the recent case of P.G. Sam Infant Jones vs. State (2021), the Madras High Court, led by Justice G.R. Swaminathan, determined whether child pornography is an offence or not. In the present case, the petitioner had browsed, downloaded, and transmitted child pornographic material by using Airtel sim through his email and Facebook account.
The respondent in the present case mentioned that the National Center for Missing and Exploited Children (NCMEC) is an international NGO that maintains a cyber-tipline. A Memorandum of Understanding existed between the National Crime Records Bureau (NCRB) of India and NCMEC of the United States, which allows access to the material held by NCMEC. The petitioner was named in a tipline complaint given to the respondent police. It was also highlighted that the incident occurred about a year ago and looked to be a one-time occurrence. As a result, the petitioner was ordered to surrender his phone, sim card, and other relevant equipment to the respondent.
The High Court’s observation
The high court noted that privately watching pornography will not be considered a crime. As of now, there is no law that forbids such private activities, and some even argue that they are protected under one’s right to free expression and privacy, guaranteed under the Indian Constitution. However, under Section 67B of the Information Technology Act, 2000, every act relating to child pornography is punishable; therefore, even watching child pornography is illegal.
The bench distinguished between a one-time consumer and those who transmit, disseminate, show, or distribute in the digital arena, thereby stating that child pornography is a significant issue that requires a firm approach. The court stated that it is self-evident that the minute one enters digital space, one is subjected to monitoring by either the government or those who operate social networking sites. The court further added that “if you value your privacy, you have no choice but to avoid such networks. Of course, in today’s world, this is not an option.”
Crl.O.P. (Md) No. 11735 of 2014 vs. state (2015)
A reformative judgement was given by the Madras High Court while deciding the case of Crl.O.P. (Md) No. 11735 of 2014 vs. State (2015), which involved a 15-year-old boy becoming victim to sexual harassment by the petitioner, a British National while the former was residing in the Trust run by the latter. While defining the term ‘child sex abuse’, the Court had viewed that intercourse, attempted intercourse, oral-genital contact, fondling of genitals directly or via clothes, exhibition or exposing children to attempt sexual behaviour or pornography, and the use of children for prostitution or pornography are all examples of the same.
Laws playing a modest role
According to Article 39 (e) (f) of the Indian Constitution, it is the responsibility of the state to ensure that children are not harmed and that they are given the chance and facilities to develop in a healthy and free way. Similarly, Article 45 states that it is the responsibility of the state to give comprehensive care and education to all children, particularly until they reach the age of six. The state is allowed to provide specific provisions for women and children under Article 15(3). Apart from the constitutional rights, Parliament enacted the Protection of Children from Sexual Offence Act 2012 in order to protect children from sexual assault, sexual harassment, and pornography, as well as to establish special courts for the trial of such offences and for matters related to or incidental to them. The court in the present case noted that, despite the aforementioned special rule, the fact remained that, according to NCRB studies, crimes against minors are escalating at an alarming rate.
A reformative viewpoint
The Court, in light of the present case, made the following socially awakening observations:
It is necessary for the government to make a decision on sex education after comprehensive consideration. In these days of globalisation, where knowledge is available via the Internet, young people are naturally fascinated about sex and are more likely to see pornographic material, which can lead to sexual arousal and the commission of sexual offences against minors.
Children should be educated about sexual solicitations, unwanted touching, and sexual abuse in light of the aforementioned circumstances. This type of hazardous issue is caused solely by a lack of knowledge, which must be rectified. We should not mislead ourselves or our children in the name of culture, values, morals, or traditions in the age of globalisation. As a result, the government must make a proper decision on the implementation of comprehensive sexuality education for adolescents and young people.
Children can benefit from age-appropriate education about their bodies and sexuality to help them grasp the difference between sexual and non-sexual contact. This type of instruction can help children overcome the feelings of shame and dread that commonly accompany sexual assault and enable them to disclose past or current abuse. Given the overwhelming evidence that child sexual abuse is widespread in India, as well as strong evidence that age-appropriate sexuality education for children can reduce the incidence and severity of sexual abuse, the Indian government’s failure to provide compulsory sexuality education for children in all schools amounts to negligence and a violation of its commitments.
Traditional punishments don’t seem to have clear benefits, so even though castration might seem extreme, serious crimes should be met with severe consequences. The goal of castration as a punishment is to mess with an offender’s libidos in order to regulate their behaviour, removing the sex desire that drives them to commit crimes fueled by alcohol and pornography. Castration has been inflicted on child sex offenders in Poland, Russia, Estonia, and nine states in the United States, including California, Florida, Oregon, Texas, and Washington. South Korea was the first Asian country to criminalise castration.
While dismissing the petition in this case, the High Court viewed that the red corner notice issued to the petitioner by INTERPOL remained, so as to enable him to visit India only to appear before the trial court and face the trial.
Impact of regulations, public policy, and public awareness
There have been efforts to regulate pornography across jurisdictions. The habit of watching and consuming pornographic content differs globally. While some countries impose strict bans and censorship laws on pornographic content, others adopt a more permissive approach towards the consumption of pornographic content with harm-reduction techniques. However, it is still contentious to know how effective the regulations imposed by both types of countries are. It is seen that strict and outright bans on pornographic content often lead to increased use of tools like Virtual Private Networks (VPN). The use of a VPN undermines the objective of imposing bans and regulations on such content. Also, if such content is freely available without any restrictions on the internet, then this will harm the vulnerable population of the country.
Amidst all of these debates, what is essential is promoting public awareness and responsible consumption amongst users. It is very important for a user to judiciously consume pornographic content on the internet. Educating about the potential harms, legal implications and consequences would empower them to make a better-informed decision.
Conclusion
It is often difficult to understand the complex issue of pornography, which requires a person to navigate through various perspectives, some of which might be disturbing. It involves debates, production dynamics and societal implications. This is particularly concerning regarding human trafficking and sexual assault.
Pornography also triggers moral debates around individual choices and societal norms. The question revolves around whether a person should watch or abstain from watching pornography. The question tends to raise fundamental ethical concerns. In countries like India, where traditional values clash with modern influence, the topic of porn is heavily criticised. Some argue that it raises unrealistic expectations of sexual behaviour and others support personal autonomy and freedom of speech.
It is a fact that the porn industry is vast and has become a business for financial gain. Technological advancement, internet accessibility and societal attitudes towards watching pornography have acted as a boost for the industry. However, this also raises concerns about its potential connection to human trafficking and sexual exploitation. People are coerced and deceived into participating in pornographic activities against their will. There is a need for stricter norms to address the overlapping issue between pornography and its potential link to human trafficking. There has always been some sort of prevalent illegal activity in the pornographic industry, be it child pornography or human trafficking of minors.
It is a complex issue to resolve that involves moral, ethical, legal and societal aspects. The debate is never-ending because, as societies continue to evolve so does their viewpoint on a particular issue. There has to be a balanced approach to the sensitive yet crucial topic of pornography in India. The answer to whether watching porn is illegal lies within an individual and the society he is surrounded in. However, there are certain acts that go beyond the individual freedom of a person and start interfering with other people’s rights and dignity as given under the laws discussed above. It is at this point that watching porn becomes illegal!
Frequently Asked Questions (FAQs)
Can a CEO or top-level executive of a company be held liable for the content posted by the users on their platform?
Yes, under certain circumstances where they have knowledge of the content being posted. If it can be proved that the CEO is directly involved, was aware of the illegal activities, and yet failed or refrained from taking action, then he can be held liable.
How does the law define ‘offensive material’ concerned with online content?
Offensive material includes content that is blasphemous, defamatory, obscene, harmful, harassing, pornographic, libellous or invasive of privacy.
What laws govern the social media platform and any explicit content uploaded to it?
The Information Technology Act of 2000 majorly governs liability relating to social media platforms and other online intermediaries as well.
What are the future challenges that might be faced by intermediaries and the laws governing them?
There might arise some challenges in adapting to fast-paced technological advancements, addressing cross-border legal issues and maintaining a right balance between the user’s rights and cyber laws.
Is watching porn illegal in all countries?
No, the legal norms and implications vary from country to country. Some countries tend to have stricter norms, while others have a permissive approach towards the consumption of pornographic content.
Can pornography be considered a form of free speech?
Yes, in many countries, it is protected under laws governing freedom of speech and expression. However, the protection is not absolute in nature. It is limited by certain laws on obscenity, child protection, public decency and human trafficking as well.
Can pornography addiction be compared to substance addiction?
There is always an ongoing debate on this question, wherein experts classify watching pornography impulsively and regularly as a form of addiction. Anything that is consumed beyond the required amount, be it any substance like a drug or such explicit content, it all leads to addiction. Excess of anything is always bad and have many side-effects on a person’s well being and health.
Allow notifications
