Power of states to enlist OBCs – the Constitution (127th Amendment) Bill, 2021

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November 17, 2021

source: http://www.erewise.com/current-affairs/constitutional-amendments_art52d7a5e1569fd.html

This article is written by Ojasvi Gupta, a student of the Law School, Banaras Hindu University. It reviews the recently passed Constitution (127th Amendment) Bill and attempts to understand its need and its impact on the State.

Table of Contents

Introduction

The conflicted history of backward classes, along with the scheduled castes and tribes in India, is no hidden fact. The historical social structure of caste has placed individuals in an intricate web of social organization by determining the social order. The caste system, in the name of establishing and maintaining social status, has led to the exploitation of the lower castes over the millennia, though social reform movements and legal protection have curbed it down a notch.

Historically, OBCs are those communities that exist one status above the lowest rungs of castes but are far away from the higher castes, deprived in terms of social, educational, and economic aspects. To assess their position and ensure holistic development, various committees have been set up by the government. Committees like Kalelkar Committee and Mandal Committee were constituted with the primary aim of identifying the communities which are materially backward and bringing them under the benefit of State-sponsored welfare. Reservations play a vital part in the actualization of this goal. For this reason, the Hundred and Twenty Seventh Constitution Amendment Bill, 2021 a legislation bringing new dynamics in the OBC politics is being analyzed.

Background

The 127th Amendment Bill of the Constitution, now enacted as the 105th Constitution (Amendment) Act, was introduced by the Ministry of Social Justice and Empowerment on August 9, 2021. It was passed unanimously by both the Houses of the legislature on subsequent days without any delay. The main aim behind bringing in this legislation was to restore the power of the states to identify backward classes of their respective state.

OBC and SEBC

In India, a separate list is drawn up by the Centre which recognizes the Other Backward Classes (OBC). Similarly, each State identifies the classes which are Socially and Educationally Backward Classes (SEBC) in the concerned State. These lists are crucial for the structure of reservation and quotas provided under the Constitution of India through provisions of Articles 15(4), 15(5), and 16(4).

102nd Constitution Amendment Act, 2018

Introduced in 2017 in the Lok Sabha and passed after a year, the 123rd Constitution Amendment Bill aimed to establish the National Commission on Backward Classes (NCBC) as a constitutional body, at par with the National Commission for Scheduled Tribes and the National Commission for Scheduled Castes (NCSC). The major changes it brought forth are as follows:

It granted constitutional status to NCBC by introducing Article 338B. The scope of NCBC operation was also expanded to place it pari passu i.e. on equal footing with the Commissions for SC and ST provided under Article 338 and 338A, respectively.
Secondly, Article 342A was added to the Constitution, which stated the process for the identification of socially and educationally backward classes under this category. This too parallels Articles 341 and 342, which are used to identify SC and ST.
Finally, clause 26 C was inserted into Article 366, to define what SEBC means. It consists of all those classes which are declared backward under Article 342A for the scope of the Indian Constitution.

Implication

The legislative goal behind the Constitution (102nd Amendment) Act, 2018 was to deal with the Central List of the Socially and Educationally Backward Classes (SEBCs). Since 1993, there have always existed separate lists of the backward classes by the Central Government and by the State Governments. But the Constitution (102nd Amendment) Act, 2018 raised the question as to whether it mandated for a single Central List of SEBCs specifying the SEBCs for each State, thereby taking away the powers of the State to prepare and maintain a separate State List of SEBCs. Moreover, the Central government already had the power to publish lists so the addition of Central in the then amended Article 342A was a redundancy.

Maharashtra reservation case

The Maharashtra State Reservation for Socially and Educationally Backward Classes (SEBC) Act, 2018, was much-contested legislation till it was declared unconstitutional by the Supreme Court in Jaishri Laxmanrao Patil v. Chief Minister (2021).

Facts of the case

Various writ petitions were filed in the Bombay High Court challenging the constitutional validity of the reservation Act. The main arguments raised by the petitioner were as follows:

The Act is unconstitutional as it surpasses the 50% ceiling limit imposed on the reservation in any state by the judgement in Indra Sawhney v. Union of India (1992).
The Act provides reservations on the basis of the report presented by Justice Gaikwad Commission, which, allegedly, lacks reliable, scientific, and adequate data to justify either the backwardness of Marathas or the extraordinary conditions which validate increasing reservations in Maharashtra state.
The Act was passed by the state government without meeting the procedural requirements of the 102nd Constitution (Amendment) Act, 2018.

The Maharashtra State Government, as the respondent had contended that extraordinary conditions such as the increase in the number of suicides due to social and economic factors among Maratha families justify the Act.

Judgment

The Bombay High Court while refusing to put an interim stay on the Act, upheld the reservation for the Marathas but asked the state government to reduce it to 12-13 percent – the recommended number by the State Backward Class Commission, from the, provided 16 percent. The rationale was that the ceiling imposed by the Supreme Court on the total percentage of quotas could be exceeded in exceptional circumstances, as shown by the Maharashtrian government.

Appeal

On 12 July 2019, the Supreme Court admitted an appeal to the Bombay High Court’s decision in the favour of the Maharashtra state government. The bench differed from the High Court decision and struck down the SEBC Act on account of no extraordinary circumstances present that provide for violating the 50% mark on the reservation. This was the decision of the Bench unanimously.

Meanwhile, the interpretation that the 102nd Constitutional Amendment deprived the state of the authority to identify backward classes was the opinion of the majority of the Bench excluding two. The verdict was that only the President can notify a list that identifies the backward classes, which Parliament can amend thereafter. States have only recommending power in this regard. Justices Bhushan and Nazeer dissented on this issue and were of the opinion that Parliament did not intend to take the States’ powers of identification.

Need of the 127th Constitution Amendment Bill

After the Supreme Court upheld the 102nd Constitutional Amendment Act to be constitutional in its Maratha reservation ruling and stated that the President, based on the recommendations of the NCBC, would determine which communities would be included on OBC list for the State as well as the Centre, a change was required to restore the state-Centre balance.
The judicial interpretation gave the final power to the hands of the Centre. Article 338B makes it binding on the Commission to share the report concerning matters of identification with the State but the final determination culminates in the Central government under Article 342A (1).
Although it was clarified that the States’ power to make reservations, in favour of communities of the lists, including reservations in educational institutions and promotions, and all other matters falling within the ambit of Articles 15 and 16 remain undisturbed, the only limitation placed was regarding the identification of SEBCs.
Hence, to fully clarify that the State Government and Union Territory are empowered to create and maintain their own SEBC State List / Union Territory List, and to maintain the federal structure of the country, the 2021 Amendment was anticipated by many.
For instance, if all the state lists were abolished, nearly 6 7 1 OBC communities would have to lose access to reservations in educational institutions, appointments and promotions. This has the potential to adversely impact a good chunk of the total OBC communities (approximately 20%) existing in India.
Along with this, three other states- Tamil Nadu, Haryana, and Chhattisgarh have introduced quotas in their states that breach the 50 percent ceiling while some including Rajasthan, Gujarat, Karnataka and Jharkhand have requested the Supreme Court to raise the quota limit.

Changes brought about by the 127th Amendment Bill

The Bill amends the Constitution to allow States and Union Territories to prepare and maintain their own list of backward classes. The specific changes are as follows:

The 127th Constitution Amendment Bill amends clauses 1 and 2 of Article 342A and also introduces clause 3 which authorizes the States and UT’s to decide on their own list of the backward classes, irrespective of the fact that it may differ from the Central list.
The Bill states the consequential amendments in Articles 366 (26c) – which defines SEBC and 338B clause 9 by adding a proviso that nothing in this clause shall apply for the purposes of Article 342A (3).
This makes the State list out of the ambit of the President, and thus the states will be able to directly notify SEBCs without having to refer to the National Commission for Backward Classes (NCBC).

Impact of the Constitution (127th Amendment) Bill on Backward Classes

Dr. Virendra Kumar, the Minister introducing the Bill stated that it was historic legislation as 671 caste groups in the country would benefit from it. Thus the 105th Constitution Amendment Act explicitly restores the States’ rights to identify and declare their own list of Backward Classes that are at a disadvantage in terms of social and economical status.

The Bill has significant political ramifications as restoring States’ powers to identify backward classes has been a demand by many regional parties including the ruling party’s own OBC leaders. The BJP, and the Opposition parties, alike, want the OBC communities to be on their side in the poll-bound states, especially in the politically crucial Uttar Pradesh, which will be having an election in 2022.

This political angle is the main reason forcing the Opposition parties to be on the same page with the government as refusal or delay in this regard might have a disastrous fallout on their reputation and support among the OBCs.

The Amendment that allows state governments to add communities to the OBC lists that they deem fit is significant as it allows the benefits of OBC reservation to reach the grass-root level.
Secondly, the position of NCBC is reaffirmed by mandating states to hold consultation with the statutory body in all matters related to OBCs. This provides clarity as well as rigidity to the welfare measure for the weaker section of the society
When seen in the light of the evolution of the OBC reservation of early days which aimed for immediate outcomes (ad-hocism) to the current mechanism of institutionalization, it is a strengthening step.

Although it’s too soon to predict, the implications of the 127th Constitution Amendment Bill are going to be far and wide. There have been some improvements but it holds true that the rigid social structure and institutional hierarchies in India have remained unchanged even after reservations were given to the weaker communities. The upper castes still have a hold on or are themselves the elites of the country, be it political or social.

The reservation system as a mechanism of positive discrimination has the potential to change the existing social relations to the benefit of those who have been exploited since decades and more. This decision could be a milestone for creating a new identity in India.

Reaction of political leaders to the Bill

In what came out as a surprising move, the Opposition supported the 127th Constitution Amendment Bill wholeheartedly. The Opposition’s support to pass the Bill was significant as a constitutional amendment requires a two-thirds majority of lawmakers who are present during the proceedings, with at least 50% in attendance. During the course of the discussion on the Bill, several opposition leaders quipped the successful enactment of the bill to the upcoming assembly polls in Uttar Pradesh as OBCs are known to play a significant role in the voter turnout.

Mallikarjun Kharge, the Leader of Opposition in Rajya Sabha, himself stated that the Bill was supported by all opposition parties. The Indian National Congress supported the Bill while pointing out that several states want to increase the 50 percent ceiling of reservation.
Lead speaker for the Opposition in the Lok Sabha, Adhir Ranjan Chowdhary reasoned out a unique point in favour of the Bill. He said that the Bill was required at present because the ruling government had not paid heed to the suggestions of the Opposition during the debate on the 102nd Constitutional Amendment, 2018.
Nationalist Congress Party (NCP) leader Supriya Sule, whose party was the frontrunner in Maharashtra for pushing the Maratha reservation in connection with which the Supreme Court delivered its verdict on the Centre being the final ‘messiah’ of OBCs, said that the credit goes to the Maharashtra government which requested the Centre to move the Bill to address the need to the hour issue.
Dravida Munnetra Kazhagam (DMK) MP Dayanidhi Maran said he hoped the UP elections came every year as seems the only way through which the government will think about the welfare of the backward population and also highlighted the role Tamil Nadu’ played in recognizing the concerns of the backward classes.
AIMIM chief Asaduddin Owaisi also extended support for the Bill while commenting on the government for playing vote-bank politics and questioned why the government was only supporting a few backward classes under the 50 percent cap on reservations. He went further and demanded that the 1950 Presidential order, which provides reservation to Scheduled castes, should not be based on religion so that Muslims can also benefit from it. This demand was also raised by other MPs regarding reservations for Christians.
Samajwadi Party leader, Akhilesh Yadav asserted the Centre’s commitment to social justice and criticized the government for playing with the reservation system to maximize their benefit at the cost of the welfare of the backward community. He also pointed out the anti-reservation stance of the government is indicated by the 50 percent cap on reservations. The leader reminded the role the OBCs play in the formation of government and implored that the caste census data be made public.
Many parties, including Samajwadi Party, the Telugu Desam Party, Apna Dal, and Janata Dal mentioned the need for a caste-based census to give the necessary data for planning the schemes for OBCs in the country.

Conclusion

The significance of this Constitutional Amendment is a reflection of the greater need for development and growth in our society, especially to those individuals who require it the most, owing to their backwardness. The fact that numerous communities need the cover of OBC categorization and not just for the political powerplay is related to the idea that there is a huge scope for the development of many of them in India. The rigid caste system has not yet been broken down and this grim reality needs further introspection and policy innovation. Another concern that arises from this Amendment is how States act upon the responsibility as States, now will be compelled by the local politics to add newer communities into their respective OBC lists. It is to be cautioned that exercise of this power does not end up diluting the intent and effects of this path-breaking Amendment.

Thus, the Constitution Amendment Bill has brought much clarity in the standard operating procedures of functioning of OBC reservation, ensuring representation and empowerment to the communities that often get left out from inclusive development discourse. It aims to empower the people from backward communities, enhancing their social status through good education and employment opportunities, paving the way for inclusive development. Particularly during the time of pandemic and facing economic hardships, the 127th Constitution Amendment Bill might be able to bridge the widening gulf of destitution and poverty.

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Career opportunities, benefits and challenges in Intellectual Property Law

By

Sneha Mahawar

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November 17, 2021

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Intellectual-Property-Rights-in-India-1280x720 (1) — Image Source https://rb.gy/fczwju

This article is written by Nishka Kamath, a student at Nalanda Law College, University of Mumbai. The author of this article is also an ardent LawSikho student and is pursuing several LawSikho courses. This article focuses on the opportunities and benefits for individuals in the field of intellectual property laws. Further, the major challenges faced while building an IP law career and how to combat them are talked about.

Table of Contents

Introduction

In the 21st century, an individual comes across several commodities that are patented or protected by Intellectual Property Rights (IPRs), throughout the day. These items can be anything ranging from food, shelter, clothing, things of survival to comfort items. Thus, an individual can wake up from a Gautier bed, with a supportive mattress from Sleepwell and a pillow from Hush Puppies, along with a blanket from Signature, then go on with a cup of coffee from Nescafe and take a shower with a body wash from The Body Shop and wear a suit from Armani and shoes from Christian Louboutin, and drive to the office in a BMW car. Later, in the evening, the person watches Sab TV on a Samsung Television, then sets an alarm on a Fossil watch, switches on an air conditioner by LG, and at last, turns off the Wi-fi enabled smart lights by Syska.

Here, the person has used several items that are someone’s intellectual property. All these commodities are protected by copyright, patents or trademarks, which come under the ambit of Intellectual Property Rights (IPR).

The 21st century will be the century of knowledge, a century of intellect. The ability of an individual as well as that of the nation to transform knowledge into wealth and social good through innovations and creations would be a determining factor for success in the future. Therefore, we can say that the innovations will hold the key to knowledge creation and processing.

As per World Trade Organisation (WTO), Intellectual Property Rights (IPR) are the “rights given to people over the creation of their minds“. From the ancient times where stamps were used on bricks by the Roman brick-makers for identification purposes and the leader of the Greek city granting monopoly (for a year) for cooking a savoury dish to the modern era of having specified laws for Trademarks and trade secrets, Patents (for inventions), Copyrights (for literary work), the field of IPR has seen exceptional progress.

In this digitised world, the threat of creative ideas getting stolen without the consent of the author is quite high and so is the demand for IP lawyers. So, let us discuss the top career opportunities for IP laws along with their challenges and how to overcome them.

Why should you choose IP Law as a career

With liberalization, the challenge for protecting the innovative works of the inventors and producers has become greater than ever. In order to achieve exclusivity/monopolistic rights over the products’ manufacturing and distribution, it is necessary to protect the innovation, not only in the Indian market but also in the international market. This will certainly create opportunities for IP lawyers in India as well as abroad.

In addition to these opportunities, the high demand for IP lawyers will also lead to higher rewards. IP law practice will flourish in India as India’s global importance as a rapidly growing market for consumer goods, technology, media, automobiles, and luxury items continues to grow. Top IP law firms pay INR 70,000-100,000 to entry-level lawyers, and tier 2 law firms pay between INR 40,000-100,000. Small companies can pay between INR 25,000-40,000. A partner with 10 years of experience can earn 50 lakh-1 crore annually.

Pay scale of an IP lawyer

The average pay scale of an IP lawyer in India is as follows:

Legal Associate: INR 1,99,000-10,00,000.

Intellectual Property Lawyer: INR 2,40,000- 11,00,000.

Judge: INR 8,00,000-30,00,000.

Lecturer: INR 2,92,000-6,10,000.

Author: INR 2,48,000-8,11,000.

Journalist: INR 1,02,000-8,05,000.

Moreover, the average salary of an IP attorney in the United States is $117,360 per annum or $56.42 per hour. The lower limit of that spectrum, i.e. the bottom 10% to be precise, earns around $65,000 annually, whereas, the top 10% makes around $211,000, yearly.

Furthermore, in the United Kingdom, the average salary of a trainee is from £35,100 to 40,900. As a newly qualified patent attorney, the salary ranges from £58,800 and can rise to £69,700 in a two or three years period. Again, a qualified attorney who has about 5 years of experience can earn around £78,000. Additionally, an attorney at a salaried partner level can earn around £115,000 and an equity partner can earn anywhere between £150,000 to £500,000.

Benefits for IP lawyers in the modern era

Ingenious ideas as a means to profit-generation

Ideas have little to no intrinsic value. IP rights have tremendous scope in turning innovations into commercially viable products and services. Copyright and Patent registration provide a constant fee flow, which, in turn, increases the revenue, thus, improving the overall market results. Here, there appears a need for a Copyright and Patent lawyer.

Export business opportunities

Intellectual property also enhances the productivity of a company in the export market. An IP right holder can use the registered logos and/or designs to sell products and services abroad, and may also enter into franchise agreements with foreign companies, or even export the proprietary commodities. Hence, from product registration to overseas sales, the need for an IP lawyer is increasing.

Encourage ideas by backing them up with IP protection

When a creator has a unique idea or development, there will be people who will try to replicate the concept of development for monetary gain. In such cases, these ideas, innovations and concepts must be protected from getting infringed by any third party. IP security can be implemented in enterprises of all forms and sizes. Therefore, after assessing the market needs and situations, an individual should decide which Intellectual Property Rights (Trademarks, Copyrights or Patent registration) should be used to cover different areas of IP law. Even here, there exists an apparent need for an IP lawyer.

COVID-19 pandemic and IPR

The open COVID pledge is an effort of techies including IBM, Microsoft, Amazon, Twitter, Hewlett Packard and Sandia National Laboratories. They have vowed free use of Intellectual Property (IP) to fight COVID-19. Thus, start-ups could take advantage of this for accelerating the creation and implementation of diagnostics, vaccinations, etc.

Since this move, political leaders around the globe have submitted proposals to increase access to IPRs related to COVID-19. Also, some countries are considering a compulsory license system whereby the government authorizes the third party to perform or use certain procedures without the consent of the patent owner.

Thus, due to the above matters, the demand for IP lawyers has increased tremendously.

Now, let us have a look at several career opportunities available for an IP lawyer, in India and across the globe.

Careers in IP Law

Competition Law

If intellectual property is known to monopolize a creation or invention, Competition law is known to stave off monopoly. The TRIPS Agreement provides the scope of enforcement of competition law vis-à-vis anti-competitive licensing practices and situations. Therefore, a thorough analysis of strategy, company policy and the development of new policies along with drafting contracts is an emerging opportunity for IP lawyers.

Audits and valuation

Intellectual Property Auditing is a tool primarily used to take into account the intangible assets which the companies have developed over a period of time. IP auditing and valuation is very important because it accounts for the goodwill of the company and is one of the many reasons why the companies acquire protection.

In times of change, it is important to identify intellectual property that is owned, used and acquired by a company for managing risks, troubleshooting issues, and implementing best practices in IP asset management and the company usually needs an IP lawyer to perform all the aforementioned activities.

Corporate Law

In the field of Intellectual Property, contracts/agreements are very important legal aspects and include drafting of confidential information agreements, license agreements, assignment agreements, franchise agreements, inter alia.

Therefore, an enterprising lawyer must be familiar with the problems associated with IP and its associated agreements. This opens up a plethora of job opportunities.

Investigation and enforcement advisory

One of the key areas of IP enforcement is the detection of IP rights being violated. In such cases, the investigators who have proper knowledge of laws relating to intellectual property can conduct inquiries and deliver appropriate direction on whether to take any action or not.

Fashion, media and sports

These are the niche areas of practice where Intellectual Property law plays a central role. These sectors are IP intensive. In addition to registering patents, copyrights, and trademarks, these industries have a substantial amount of work relating to licensing, franchising, assignment of IP, IP prosecution as well as enforcement of IP rights worldwide.

Litigation

Litigation is an evergreen field. An individual just has to take the time to work hard and make their name known in the field. The judiciary is also concentrating on this area of law, considering its dynamic nature. Intellectual Property law proceedings are very much common in the high courts of Indian cities like Delhi, Mumbai, Chennai and Kolkata. Moreover, trademark litigation and dispute matters are at the top, followed by Copyright and Patent law.

Patent lawyer

There can be several jobs a lawyer having specific knowledge of patent law can do. Some of them are as follows:

Patent Analyst

The role of a patent analyst is to look up for potential patent applications. They may also work for a company that develops a product, evaluates the proposed product, and decides whether it can be patented or not. They are responsible for doing a lot of research and investigating if an equivalent item is currently patented, or if a patent of a similar item is pending approval. They need to ensure that the patent application does not face legal ramifications.

Licensing Specialist

Licensing specialists typically work for government agencies. They are responsible for providing licensees and permits to applicants while complying with the rules and regulations of the company. Amongst others, their duties include the following:

collecting and verifying identification files,

reviewing and validating requirements,

answering inquiries,

collecting fees, etc.

Patent LPOs (Legal Process Outsourcing)

The role of a major LPO service provider includes several features such as:

legal documentation and writing legal reports,
legal memo development,
document management,
litigation support, and
data entry.

Moreover, patent search, application drafting, trademark and copyright registration, legal research and analysis of intelligence services are other highly-skilled LPO tasks.

Patent Drafting Specialist

A patent specification is a highly technical legal document and has two purposes, they are:

To disclose an invention to the public in a language that will enable the public to work the invention when relevant patent rights have expired.
To identify the subject matter that the patent applicant or patent owner intends to claim exclusively for themselves.

As a key person responsible for drafting a patent specification, the patent attorney must be able to quickly extract the idea of the invention and ultimately, convert it into a specification that protects the invention. Thus, sufficient knowledge of the relevant technology and technical patenting skills is essential for creating patent specifications in a time- and cost-effective manner, especially for a patent drafting specialist.

Top IP law firms

An individual can join the corporate world as an IP lawyer. These jobs are glamorous and will help you fetch a good amount of money. There are several top IP law firms in India, as well as in foreign countries. Some of the top Indian IP law firms are as follows:

Anand and Anand,
Remfry and Sagar,
Cyril Amarchand Mangaldas,
Khaitan & Co.,
Obhan & Associates, and
Fidus Law Chambers.

The top IP law firms outside India are:

Allen & Overy LLP,
Arnold & Porter,
Baker McKenzie,
Bird & Bird LLP, and
CMS Cameron McKenna Nabarro Olswang LLP.

Why is IP Law intriguing

Intellectual property (IP) refers to the creations of the mind, such as inventions; literary and artistic works; designs; and symbols, names and images used in commerce. Intellectual property law allows individuals to claim exclusive rights and have monetary gains from what the inventor or creator has produced. This is beneficial for the creator as well as the public, as it is based on human creativity and originality. It is not surprising that for lawyers in the IP field, working cannot be dull. In other words, IP law is infinitely intriguing, especially when geniuses are mixed with mortal unpredictability.

Is IP law for you

Roles of an IP lawyer

An IP lawyer plays a variety of significant roles in relation to the protection of intellectual property. From court proceedings to serving as advisors and counselling them, an IPR lawyer performs all the roles.

One task that every IP lawyer does is to prepare the documents required to apply for a patent or trademark. The other is to represent an individual or a company in dealing with others who are abusing their intellectual property.

An IP lawyer may also interpret rules and regulations for clients, conduct research used to create multiple documents, and communicate with clients and other attorneys in both, written and oral form.

Responsibilities of an IP lawyer

The responsibilities vary depending on whether the IP attorney is advising an individual client or being employed by a company to safeguard their products from infringement. However, an IP attorney will need to:

Discuss the inventions and the processes with inventors/manufacturers and determine if a patent may be granted.
Analyse scientific or technical documents, including documents of patents that are already granted, to assess whether an invention is new and innovative.
Write technical descriptions of inventions in detail and accurate legal terms/.
Prepare responses to reports from patent examiners, etc.

Skill set required to succeed as an IP lawyer

An IP lawyer must admire inventiveness and creativity, and understand several aspects and methods of its expression. This field of law encompasses several fascinating projects that are technical and require an in-depth knowledge of trends and modifications in line with their type. As there will be multiple projects running at the same time, skills like organising and flexibility, combined with the ability to handle complicated discussions will be of paramount importance.

Thus, with the right skills and expertise, this area of law can be particularly lucrative and can fetch you millions or six-digit figures, at least.

Challenges faced by an IP Law enthusiast

Complicated IP Laws

There are several fields in IP law like Trademarks, Patents, Copyrights, Industrial Designs, Geographical Indications, Data Protection, inter alia, and each of them are governed by a separate law. For instance, in India, we have the Trade Marks Act, 1999, for Trademarks, the Patents Act, 1970 (as amended in 2005) for Patents, we have the Copyright Act, 1957 for Copyrights, etc. So, it becomes difficult, at times, to understand all the complexities of these laws which can be too tedious a task.

Deep knowledge of IP Laws

Needless to say, to get and maintain the job of an attorney, one needs to fully understand all the intricacies of the law they are practising. The same is the case for IP lawyers, as they constantly need to update their knowledge and practices. As a law student or a law graduate, it becomes tough for an individual to keep up with all the new laws and amendments carried on.

Diverse work profile

There is a fair chance that you are reading this as a law student or an IP enthusiast who is apt to step into the world of IPR as a lawyer, so let us take a look at the different possible roles played by the people in this field. They are as follows:

Drafting,
Litigation,
Research, policy framing and philosophy,
Analysis and strategy planning,
Technology assessment and marketing, inter alia.

A note must be taken that this list is not exhaustive. The concept is to make clear that a single individual can take up more than one of the aforementioned roles, the reason being that specialisation in a specific field (especially, in India) is not widespread. These roles may narrow down if you end up in a firm that deals with issues related to IPR only. Otherwise, if you decide to step into litigation, you have to have a dynamic and broad subject of practice.

Thus, to avoid confusion and to gain more knowledge of all the basics of IPR, it is always advised to consult a person who is an expert in the field.

Getting an IP job

There is a common myth that getting an IP job is easy because it is ‘hot’. But the reality is far different. IP law is constantly advancing and evolving. It is changing its shape and size with every technological invention, every application of the copyright field and every case of unjust competition. In addition, the procedural IP laws adhere to the territorial principles and the companies are still learning to adapt to them. However, it is not a cakewalk to get a placement into IP law firms. It becomes more problematic when everyone thinks that it is easy and decides to choose this direction.

Learning to give attention to details

It is not a fact unknown that awareness of how to identify potentially important details can be a significant point in winning a proceeding. Many nuances in IP law can make the difference between fair use and copyright infringement, and this is why an IP lawyer needs to know how to spot and identify such details.

Information Technology (IT) skills

While dealing with Intellectual Property, be it patent or copyright, one particular requirement is to be well-versed in computer skills. An IP lawyer does not have to be a hacker, but must essentially know how to search a database, verify information, and possess a technical understanding.

People with prior knowledge of technology are prioritized over others

Oftentimes, lawyers with a technical degree (like a degree in science or IT or engineering) along with a law degree are given more preference. Even those candidates who have prior experience of working in an advertising company or the music industry are prefered. However, it is important that one does not get discouraged by this. All an individual needs is to have a scientific passion to succeed, which is based on knowledge and understanding of the client’s business and technology space they work in.

Communication skills

To continue working as an IP lawyer, one must not only have the practical knowledge of maintaining public relations or have good public-speaking skills for matters relating to courtrooms but also possess effective communication skills to contact and communicate with clients and their advertising teams. At times, an IP lawyer has to teach the clients how to safeguard their Intellectual Property, as well.

There is a possibility that such skills or how to impart such skills may not be taught to us at law schools. This is why we need to work on brushing up such skills or receive guidance from a person who is an expert in the field of IP.

Now, let us have a look at the major ways to vanquish such challenges.

How to overcome these challenges

Self-study

An IP law enthusiast can refer to bare acts (with or without short comments) to have a better understanding of the laws related to IPR and for gaining deeper knowledge related to Intellectual Property.

Specialization in IPR

An IP law enthusiast can, after graduating from law school, opt for a master’s degree in Intellectual Property. In India, there are top-notch colleges that offer the same. A law student can attempt CLAT-PG exams or CET exams to get into a good college, for which LawSikho has a specially designed comprehensive course, which can be accessed here.

Also, as there are different areas to cover in the field of IPR, one must explore all the different options and then pick one to specialize in. This specialization will be important while you are seeking a job or when a client is approaching you or vice versa.

Courses

An IP law enthusiast can take up several courses while in law school or even after graduating. Some of the specialised courses in the field of IPR are as follows:

LawSikho

LawSikho has one course that is a Diploma in Intellectual Property, Media and Entertainment Law. You can know more about the course from here. Furthermore, if you would like to gain some insights about IP laws in the US, LawSikho has another course to offer and can be accessed here.

FICCI

This IPR online course provides a platform for candidates to gain hands-on knowledge about Intellectual Property Rights and their importance for innovation and growth of business and the economy as a whole. They provide a research-based approach to learning through case studies, online lectures, and also work closely with industry leaders and IP experts. You can read more about the course from here.

WIPO

The World Intellectual Property Organisation provides a variety of courses in IP laws to both professionals and IPR enthusiasts. You can read more about the course from here.

Internships

One can have a better understanding of IP laws by doing internships in the field of IPR. Real-world knowledge is very important and an IP law enthusiast can get it through internships. It is one thing to read about IP laws in textbooks and a completely different thing to be involved in matters related to IPR where the laws are put into practice. This is why internships are of utmost importance for understanding IP laws and then securing a job in a firm, eventually.

Moreover, LawSikho has its career counselling team, from whom you can receive guidance if you need any. All you need to do is fill up a form or request a callback. You can know more about it here. Furthermore, every individual who takes up a course on LawSikho will have several internships and job opportunities delivered via mail right in their inbox.

Follow IP law blogs

An IP law enthusiast can further gain knowledge by reading blogs related to the subject. Some of the blogs to follow are:

Write articles

Another way to learn more about IPRs is by writing legal blogs on topics related to Intellectual Property.

This will not only be a great way to build a network, but also assist in grabbing the attention of the employers who are looking for potential employers and are hiring in this field. Also, by publishing legal blogs on IPR, an IP law enthusiast would let their future employers know that they have some prior legal knowledge in that area of law.

An IP law enthusiast or even a first-year law student can submit blogs at iPleaders, which is India’s biggest legal blog.

Attend webinars and Bootcamps

There is nothing better than seeking insights from experts. An IP law enthusiast must attend webinars and Bootcamps related to Intellectual Property Rights to gather information and learn in detail about IP laws.

These Bootcamps will help an IP law enthusiast to gain insights about the field of IP law along with the practical knowledge and skills required in this field, as they are often conducted by experienced professionals.

The team of LawSikho has organised a Bootcamp for which an IP law enthusiast can sign up here.

Watch recorded videos from YouTube

An aspiring IP lawyer can also seek insights from recorded YouTube videos related to IP laws. Various YouTube channels like LawSikho, E-justice India, Finology Legal, etc. can be referred to.

Conclusion

Intellectual Property is a well-paid work area because of its specialised nature of work, performance critique, and wealthy corporate clients. The ambit of IPR is ever-growing, both in India and internationally, and so is the demand for IPR lawyers.

Moreover from the above discussions, we can certainly say that there are several career opportunities in the field of IPR for law students and IPR enthusiasts. To succeed in the field of IPR, it is always advisable to receive guidance from an expert and then choose a career plan to follow.

Words of motivation

It is never too late to choose a career path. Plus, no one can evaluate you better than you and tell you what you need to work on or which skills you need to enhance further. This career path may not be as easy as ABC, but so is the same with other fields. It won’t be easy, but it will definitely be worth it. All the best!

References

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:

https://t.me/joinchat/J_0YrBa4IBSHdpuTfQO_sA

Follow us on Instagram and subscribe to our YouTube channel for more amazing legal content.

Critical analysis of Illinois Consumer Privacy Act

By

Oishika Banerji

-

November 17, 2021

1

Image source: https://economictimes.indiatimes.com/wealth/spend/heres-how-consumers-will-benefit-under-the-new-consumer-protection-act/articleshow/70711304.cms

This article has been written by Pulkit Chaudhary pursuing the Diploma in International Data Protection and Privacy Laws from LawSikho. This article has been edited by Prashant Baviskar (Associate, Lawsikho) and Smriti Katiyar (Associate, Lawsikho).

Table of Contents

Introduction

A new data protection and privacy bill has been introduced in Illinois. This comprehensive bill, titled Consumer Privacy Act (ICPA), would provide more explicit notice and extended rights on what consumers can do with the categories and specific pieces of personal information that a business collects.

In the present scenario, our lives are totally tilted towards the utility and the satisfaction we obtain from goods and services. Be it basic necessities like food, electricity or luxuries of life like expensive cars, hotels and business class air trips. All the aforesaid descriptions of goods and services fall within the domain of consumer goods/services and in order to deal with the legal aspect the same (quality, standards, complaint mechanism etc.) several consumer protection legislations have been enacted around the world.

Focussing on the other side of the coin, “We are consumers” and therefore various aspects of goods and services like new products, technologies and innovation depends upon the needs, wants, demands of the consumers, and competition in the market. In order to cope up with the upsurging desires of the consumers and competitive market, consumer data is the starting line of the never ending race.

Every organization, big or small, uses consumer data to enhance the quality of its goods and services. Depending upon the scale of operations of these organizations, the consumer data has to be managed and secured accordingly with appropriate technical and organizational measures. Therefore, data protection legislations are important to keep a check upon and regulate the collection, storage, processing and disposing of personal data.

Data protection legislations in the US

There is no uniform data privacy/protection legislation throughout the United States as GDPR (General Data Protection Regulation) in the European Union. Though there are different subject-specific data privacy laws across various branches like healthcare, consumer privacy, finance etc. some of them are as follows:

The Health Insurance Portability and Accountability Act (HIPAA) to regulate health insurance related data.
The Children’s Online Privacy Protection Act (COPPA) for regulating and protecting the collection and processing of information relating to minors.
The Gramm-Leach-Bliley Act (GLBA) to regulate consumer data and privacy relating to banking companies, financial institutions, securities companies etc.
The California Consumer Privacy Act (CCPA) which is the state specific statute confined to California, USA with the purpose of regulating and protecting the collection, processing, access, sale and disclosure of personal data of the data subjects.

Illinois consumer privacy law

As various US states have come forward with their respective data protection legislations, the State of Illinois has also tried to match the levels of the various data protection laws within the US and also to cope up with the global requirements of data privacy relating to the crucial rights of data subjects.

To protect its citizens against the personal data breach, illegal access, unauthorized and unconsented use, mishandling and abuse of personal information, the state of Illinois passed the Illinois Personal Information Protection Act (PIPA) which got assent in June of 2005 and came into force on January 1, 2006.

This act focuses on extending the domain of rights of the consumers and making the mechanism for exercising the rights easier and more effective as far as the Illinois data subjects are concerned.

Applicability of PIPA

The PIPA applies to the organizations who are engaged in business activities with sole motive of profit maximization in Illinois. These entities engaged in the collection of personal data of the data subject of the Illinois or the entities on whose behalf the information is collected. These entities also determine the objective of processing personal data of the data subjects.

These entities also have to comply with at least one of the following criteria:

These business organizations must have a gross annual revenue of more than $25 million.
Dealing with the data of fifty thousand or more customers (alone or jointly)
Generates 50% or more than 50% of its annual revenue by selling the personal information of the data subjects.

Types of information regulated under PIPA

This legislation covers certain types of personal information of the data subjects ranging from name, address, contact number, email which exists in public domain to professional, educational, employment, healthcare, financial related personal information not available in public domain. The organizations can also keep a record of biometric data under certain exceptions and subject to adequate technical and organizational measures.

Different organizations may or may not have their origin in the state of Illinois but if they are targeting the personal information of the data subjects of Illinois which is not in public domain then such organizations are subject to this PIPA legislation and have to comply with it accordingly.

Rights of data subjects under PIPA

Right of access to the information- The data subject has the right to access the information collected by the data controller about the consumer and how the same is used.

Right to be notified about changes in nature of processing- The data subject has the right to be notified about any change made by the organization to the nature of processing of the data than what was initially collected for.

Right to erasure- The data subjects have the right to get their personal data erased by following the appropriate mechanism laid down by the organization for the purpose.

Right to opt out- The data subjects have the right to opt out from the sale of their personal data that they may have consented to at the time of data collection.

Main components of PIPA

Notification for breach- The PIPA provides for informing all the data subjects at the earliest in case of any compromise or breach of their personal data. The organizations are under obligation to inform the data subject in the most expedient manner, without any unreasonable delay either in writing or electronically.

Security Standards- The Act specifies for the proposal, implementation and maintenance of appropriate technical and organizational measures to protect the personal information of the data subjects against data breach, illegal access, unauthorized and unconsented use, mishandling and abuse of personal information.

Disposal of Data- The organizations using the consumer data are obligated to determine the duration of use in the data retention policy and shall dispose of the data accordingly (generally when it is no longer required for business operations). The documents can be in any form (physical or electronic) and therefore the documents shall be properly disposed of as the case may be i.e. by burning, making them unreadable, by anonymising and pseudonym zing etc. This helps in ensuring the safety of personal data of the Illinois data subjects.

Compliance with PIPA

Deletion of Confidential Information-

Disposing of or deletion of personal data is necessary for the protection against mishandling and misuse of private confidential information of the data subjects collected by the company for the purpose of processing.

Encryption of Personal data-

In order to ensure PIPA compliance, the personal data of the data subjects shall be encrypted so as to prevent the same from getting leaked or breached at any point of time during the course of processing. Encryption of personal data (Prevention) will help to overcome the need of giving data breach notification in the case of data breach situation (cure). Hence, in the world of data protection also, prevention is better than cure.

Maintaining administrative standards-

To effectively comply with PIPA, the organization must keep a check on its administrative standards with respect to the collection of confidential information and data privacy policy. Therefore, tracking the administrative standards and filling the loopholes in the data protection security standards are a must for compliance with PIPA.

Communicating breach notifications-

In the event of breach of personal data of the Illinois data subjects, the communication of such breach to the data subject is one of the essential components of this legislation. The business organizations or other entities shall enable themselves to notify the people quickly in the case of the breach either physically through letters or electronically via mails, text message.

PIPA enforcement mechanism

The PIPA legislation is enforced by the Attorney General of the state of Illinois. In the case the violation of PIPA law is in existence and is not corrected within the period of 30 days, then the Attorney general is empowered to recover the hefty fines from the organization at fault which can range from up to $2500 in case of unintentional PIPA violation to $7500 in case of intentional PIPA violation.

The PIPA also empowers the Attorney General to display the names of the companies who are affected by data breach including the type of data involved and the number of data subjects affected by it.

The PIPA violations may also result in unlawful practice under the Illinois Consumer Fraud and Deceptive Business Practices Act. The amount of fines in case of data disposal violation can range from $100 for every affected individual as a civil penalty. This penalty can further extend to $50,000 for every instance of improper disposal.

Conclusion

The PIPA primarily focuses on extending the domain of rights of the data subjects in the state of Illinois. The Act not only focuses on providing the quick notification in case of breach but also lays emphasis on overall prevention of data breach itself. In order to properly comply with the PIPA appropriate technical and organizational measures should be adopted and updated accordingly. By using the security mechanisms like anonymization or pseudonymization, detection of breach threats, the chances of data leaks and misuse can be curtailed and PIPA compliance can be ensured.

References

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:https://t.me/joinchat/J_0YrBa4IBSHdpuTfQO_sA

Follow us on Instagram and subscribe to our YouTube channel for more amazing legal content.

Applicability of a will before and after the enactment of Hindu Succession Act, 1956

By

Diganth Raj Sehgal

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November 17, 2021

1

1573710971Daughter-property-rights — Image source - https://bit.ly/3sg3xNu

This article is written by Ms. Somya Jain, from the Vivekananda Institute of Professional Studies. The article analyses the applicability of the testamentary succession before and after the commencement of the Hindu Succession Act, 1956.

Table of Contents

Introduction

Testamentary succession or succession through will enables a person to divest property according to their whims and fancies. A will expresses the wish of the testator pertaining to the distribution of their property after their death. The concept of will existed even before the enactment of the Hindu Succession Act, 1956. Even though the Act majorly discusses intestate succession, there is a provision that also deals with testamentary succession. The scenario in both situations, that is, before and after the commencement of the Act is almost similar. However, one of the greatest questions that is posed while considering the two situations is whether a person can make a will with regards to the coparcenary property? The Supreme Court in a recent judgment of V. Kalyanaswamy(D) by LRS. v. L. Bakthavatsalam(D) by LRS. (2020) resolved the underlying issue of what were the limits on the power of a Hindu to execute a will and the subsequent amendments brought after the commencement of the Hindu Succession Act.

Before the enactment of Hindu Succession Act

The treaties in Hindu law did not consider the concept of a will. However, over a period of time, courts recognised the power of a Hindu to bequeath his separate and self-acquired properties even prior to the Hindu Succession Act being enacted. Before the Act came into force, no such law governed this concept under its purview. But, in the year 1865, Succession Act came into being, however, it was not applicable to Hindus. Further, the Hindu Wills Act that came into force in the year 1870, had limited application to wills by Hindus in the town of Madras. Later, on January 1, 1927, after the passing of the Indian Succession Act, 1925, the execution of a will by Hindu was recognised and thereby, regulated under the law. It is thus that after the 1st of January, 1927 in the matter of an unprivileged will executed by a Hindu, the requirement of attestation of such a will by a minimum of two witnesses became mandatory. (Unprivileged wills are wills that are created by those persons who do not create a privileged will. Privileged will can be created by the members of armed forces engaged in actual warfare or employed in a certain expedition.)

Prior to the Hindu Succession Act, a Hindu could execute a will bequeathing his separate and self-acquired property. As regards his authority to execute a will concerning his interest in the property of the joint family of which he is a coparcener, the law did not permit such an exercise. The Court in the case of V. Kalyanaswamy(D) by LRS. v. L. Bakthavatsalam(D) by LRS. (2020) noted four situations before the commencement of the Hindu Succession Act, where a Hindu was granted the power and at the same time, restrictions were imposed on his power pertaining to bequeathing his property by way of a will. The said situations were:

A member of a Joint Hindu family who also has his separate property, then the member had a right to bequeath his separate property.
In the next situation, the family remains joint and the member or the coparcener would have an interest. In this case, the interest in such joint family property cannot form a part of the will prior to the concerned Act.
The next situation pertains to the disruption in the title or a division in status. This severance means the separation in the joint family status caused due to unequivocal declaration by a coparcener which is in turn, communicated to the joint family. Such communication can be by way of words or by way of conduct including the filing of a suit by the concerned coparcener. Now, when such disruption in the status takes place, the share of the coparcener in the joint family property becomes a reality and takes concrete shape and thus, the share of the members of the joint family becomes definite in nature. This may or may not be accompanied by the metes and bounds partition. Under this scenario, the right based on the principle of survivorship perishes and the share of a coparcener becomes undeniable. This would indicate to a situation that after the death of the coparcener the share of the Joint family property would devolve to the legal heirs of the deceased and not to other coparceners.
The last situation pertains to the partition of property by metes and bounds along with the severance of the status and title in the family according to the share. The property obtained as a share on a partition by a coparcener who has no male issues is treated as his separate property. This has persisted even prior to the enactment of the Hindu Succession Act.

Therefore, prior to the Hindu Succession Act being in force, the concept of will prevailed. If a person has a separate property he could bequeath the same. As far as the Joint Hindu family property is concerned, without there being a severance in the status regarding the share of the property to be held or partition by metes and bounds, a coparcener was not permitted to bequeath his undivided share by way of a will.

In the case of Valliammai Achi v. Nagappa Chettiar and another (1967), the Court held that the property of a joint family is not entitled to be given away by way of a will and by merely devolving a Mitakshara coparcenary property through a will no difference to the title of the property will be changed. It was further observed that no coparcener can turn a joint family property into an absolute property as it is well settled that the share which a co-sharer obtains on partition of ancestral property is ancestral property as regards his male issues.

In another case of Sundara Adapa v. Girija (1962), the Court recognised the practice of not devolving the property through a will when the status of the Mitakshara property has not been severed. The Court stated reasons that by the time the will of the coparcener took effect his interest in the undivided family would have been taken by survivorship by the other coparceners.

Further in the case of M.N. Aryamurthy v. M.D. Subbaraya Setty (1972), the Court reiterated the principle that a coparcener cannot dispose of a Joint Hindu family property or any part thereof, by way of a will. The Court further stated, “a coparcener cannot devise joint family property by will, because, on the date of his death when the will takes effect, there is nothing for the will to operate on, as, at the moment of his death, his interest passes by survivorship to the other coparceners.”

After the commencement of Hindu Succession Act

The statutory recognition to bequeathing a property through a will came in the year 1956 with the enactment of the Hindu Succession Act. Section 30 of the Act deals with the position of testamentary succession. The Section empowers any Hindu may dispose of any property capable of being disposed of by him, by way of a will or through testamentary disposition in accordance with the Indian Succession Act. Further, as per the Explanation stipulated under the concerned Section, the interest of a male Hindu in a Mitakshara coparcenary property or the interest of a member of a tarwad, tavazhi, illom, kutumba or kavaru in the property of the tarwad, tavazhi, illom, kutumba or kavaru shall be deemed to be property capable of being disposed of by them.

After interpreting the Section it is certain even without any partition or for that matter without any severance of status in the sense of a declaration to be made by a coparcener to other coparceners, it is open to a Hindu to bequeath his interest in the Joint Hindu family property. Thus, the words, “interest in coparcenary property”, can be interpreted to mean the interest of a coparcener while the joint family is indeed intact in status and not when there is a partition in the sense of there being a disruption in status in the family. Thus, the interest of a coparcenary in the joint Hindu family property remains in place and after the division of status, it takes the form of a definite share. Later, through the partition by metes and bounds the share translates into absolute rights qua specific properties.

In another case of Radhamma and others v. H.N. Muddukrishna (2019), the Supreme Court held that the undivided interest of a Hindu in a joint family property can be disposed of by will as per Section 30 of the Hindu Succession Act, 1956. The Court observed that when a Hindu dies after the commencement of the Act, leaving behind the interest in the Mitakshara coparcenary property, that interest will devolve according to the rules governed by survivorship upon the surviving coparceners. However, there is an exception to this rule stipulated under the Explanation under Section 30, which clarifies that the interest of a male Hindu in Mitakshara coparcenary property can be disposed of by him by will or any other testamentary disposition.

Conclusion

The two situations, that is, before and after the enactment of the Hindu Succession Act 1956, can be contrasted on solely one ground. Before the commencement of the Act, without the division of the status in the sense of there being a disruption in the share of the coparceners, the coparcener was not allowed to devolve the property by way of a will or testament. However, after the initiation of the Act and the inclusion of Section 30 within its provisions, even without there being a partition by way of a declaration being communicated by one coparcener to another to bring about the division it is open to a Hindu to bequeath his interest in the joint family. Before the enactment, this ‘interest’ could not be the subject matter of a will. Apart from this difference, the devolution of the property by way of testamentary succession remains the same.

References

LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join:

https://t.me/joinchat/J_0YrBa4IBSHdpuTfQO_sA

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Intellectual property rights : the protective shield for board games

By

Abanti Bose

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November 17, 2021

0

best-board-games-adults-1585587217 — Image Source: https://rb.gy/1awpke

This article is written by Vansh Bajaj, pursuing Diploma in Intellectual Property, Media and Entertainment Laws from LawSikho. The article has been edited by Aatima Bhatia (Associate, LawSikho) and Smriti Katiyar (Associate, LawSikho).

Table of Contents

Introduction

Recently, the whole universe was bombarded; not with bombs and guns, but with something that proved to be much more dangerous. Yes, you guessed correctly; I am talking about the virus that is unseen yet breathtaking, the one and only “Coronavirus” aka COVID-19. The outrage of this deadly virus left cities worldwide in awe. Earlier, there were no medicines or vaccines available to counter this lethal virus. Consequently, people lost their lives due to the virus. If somehow, they were able to resist death, they were left with permanent illnesses that affect vital parts of the body. In short, this life-threatening virus has devastated the house of many. However, we all have heard an idiom that says “there is something good in everything bad”. On the positive side of this outbreak, families that haven’t sat together for a long time are now spending all these days of lockdown together and enjoying these moments. From eating breakfast together to having dinner with each other, from watching movies to playing interesting board games.

Wait, t did we just say “the interesting board games”? If you look at certain stats “since the government allowed the sale of non-essential items in some markets after the unfortunate outbreak, big stores like Big Bazaar, Snapdeal and Paytm Mall have recorded their highest-ever sales of board games. “20,000 units of ludo and another 3,000 units of carrom boards have been sold” claims Big Bazar.

As the heading “intellectual property rights: the protective shield for the board games” explains, this article is all about the relation between board games and the laws of intellectual property rights. Before we start talking about these games, why don’t we play a quick game where I will throw some riddles at you and by cracking those riddles you have to guess the name of the game. Here are the following riddles.

“More than my name, the words “check and mate” earned me fame”.
“By rolling the two dice on a game board, you can buy the houses and the hotels whichever you can afford”.
“The number of players required to play me is minimum two and maximum four, whosoever pots the pink token gets the maximal score”.

Chess, monopoly and carrom board! If these are your answers then award yourself with a sweet. But what if I say that someone has invented a new board game that can be played with 4 tokens and dice and named it “carrom board” in which you have to hit any of the black, white and pink tokens with a striker to win the game of chess! Sounds ridiculous? Yes, it does. However, this can become a reality if there are no intellectual property rights available. For most of us, these are just games with a certain set of rules but under the surface it is different. . Like music and video, these board games require the protection of copyright law. For these board games, trademark law is as important as it is for brand names and logos. Moreover, it may sound weird but patent law also works as a shield for these board games. Let’s sink deeper into this.

Impact of intellectual property rights in the world of board games

In recent times, India has become pre-eminent in the field of intellectual property. If we thoroughly understand the meaning of intellectual property, it signifies creations of the mind, such as inventions, literary and artistic works, designs, and symbols, names and images used in commerce. These intellectual rights are safeguarded by certain laws including but not restricted to copyright, trademark and patent law. The main rationale behind these intellectual property rights laws is to protect the interest of the intellectual property owner in society.

For intellectual property owners, these intellectual property rights are as important as water in the context of survival. Every right holds a large amount of significance in itself. We are all quite familiar with the relationship between a music composer with the copyright law or a relationship between a famous brand logo owner with the trademark law and obviously with the love affair between a scientist and the patent law. It is quite evident that a music composer would seek a shed of copyright law to protect his musical composition while a famous brand owner would take the shelter under the umbrella of trademark law to protect his brand name and logos from the rays of infringement. However, not-so-popularly discussed, these intellectual property right laws are as vital for the owner of board games as they are for any other intellectual property owner. Yes, you heard it right. We always hear that making good music requires a lot of hard work whereas a painter gives his everything while painting a craft. However, what we have never heard about is the level of dedication and hard work required to make a board game. For us, it is just a piece of entertainment but if you ask the maker of the game you will get to know the story of struggle, dedication and hard work behind making a piece of entertainment board. To give justice to the struggle, dedication and hard work of the maker, it is significant to protect their work from any other person and make sure that only the maker shall earn every bit of profit arising from the sale of the board game in the market. Here, the importance of intellectual property rights laws becomes crucial. Now, the question arises whether the board games would come under the scope of copyright law or under the ambit of trademark law or by any means, shall they be a subject for the patent law. Let’s move step by step.

Copyright and board games

Copyright law acts as a messiah for the writer of literary works such as novels, poems, plays, reference works, newspaper articles. Furthermore, it protects the film of the filmmaker from becoming a victim of infringement including but not restricted to piracy. Musical composers and choreographers are also shielded under copyright law and most importantly, the copyright law gives the privilege to every artist to safeguard artistic works such as paintings, drawings, photographs, and sculptures from any kind of infringement. Now, the question raised above is whether the copyright law is useful for the owner of board games or not? The answer is a big “Yes!” Copyright law is a very useful tool considering that board games consist of a lot of other tools other than the board itself such as rule book, tokens, cards and dice etc. and all these are tools that could become the main victims of infringement. So, under the ambit of the copyright law, the following aspects will be safeguarded:

Text of the Rules of the game and any other manuals: Being a piece of original written work, the Text of the Rules of the game and the manuals will fall under the literary work and can be protected under copyright law. However, the idea or mechanics for the board game aren’t protected by copyright law. For instance, you can not restrict anyone from using the concept of rolling a dice and moving a token along a track.
Story of the game: Sometimes you may see a game that is purely based on a story. Being a lover of plot-based board games, I can name many but for the sake of example let us consider a game like Sherlock Holmes: Consulting Detective, a game relying entirely upon a storyline. Here, the maker of this game could seek copyright over the story of the game(subject to a condition that such story shall not be used earlier by any other person) to assure that no other game in the market shall have the same storyline. The story, being a written work of the maker, will fall under the literary work aspect of copyright law.
Board layout and Box design: Another liberty that the copyright offers to the owner of the board game is to protect the board layout. For example, the chessboard boxes pattern or the artistic work included in creating a property square on the monopoly board. Moreover, sometimes more than the concept of the board game, what is more, tremendous is the outer box design of the game. You won’t believe it, but such a design requires more hard work and is more stressful to make than the board games. So, to make sure that such board designs shall also be protected, they are also safeguarded under copyright law. However, a special provision under Section 15 of the Copyright Act, 1957 is available to elaborate the concept of design under copyright law.
The traits of the characters in the game: Many role-playing games are prevailing in the market; that is, they are fictional characters and all such fictional characters are equipped with a unique name, appearances or attributes. Interestingly, the copyright law offers shelter to the traits of these fictional characters i.e., if the owner of a particular game obtains copyright over a particular character, such copyright will prohibit any other game owner from using any other character of the same attributes in his game. This displays how vast the arc of copyright law is.
Derivative work: A derivative work is an expressive work that includes the principal copyrightable elements of the original. Copyright law grants a luxury to the owner of the game to hold all exclusive rights to all derivatives of the original concepts, such as electronic versions of the game or alternative formulas.

Trademark and board games

It is a genuine fact that something unique yet simple has more probability to stick in your mind as compared to something complex. Now, how would you feel if I say that this mere genuine fact is the key to the success of many entrepreneurs? Yes, it is correct.

McDonald’s, a rich brand, has left a great impression on the minds of people through a simple slogan that says “I’m lovin’ it”. Whereas what strikes you, If I say “__ gives you wings”, the answer is obviously only Red Bull. What about this one in our native language? “____ doodh pita hai India ”, the answer is yet again obvious Amul. How do we remember this? It is because of their uniqueness and their association with the same brand for a long time.

Let us consider this line- “their association with the same brand for a long”. What if the next morning you wake up and hear an advertisement saying “mother dairy doodh pita hai India ”. Is it possible? Could it happen in real life? No, it is not possible and it is unlikely that it would happen in real life, all thanks to the trademark law that protects this slogan or taglines from being infringed and allows the brand owner to sleep peacefully. However, not only are these slogans guarded by the trademark, they are just mentioned for the sake of example. The actual range of the trademark law is expansive. Let us discover it.

As said, the ambit of the trademark is so vast, it renders protection to the names of the company or the name of any product along with domain names if they label a product or service. Furthermore, it shelters symbols, logos, slogans or phrases, colours and product design or product packaging (known as “trade dress”).

From the owner of the Ferrari to the owner of the TVS, from the owner of the Apple to the owner of Micromax, the trademark is equally significant as it protects their brand name or logo or slogan from any kind of infringement. However, in recent times, not only these famous car brands or mobile phone manufacturers are taking shelter under trademark law but the proprietor of the Board Games has also recognized the value of the trademark law. If we talk about the ambit of the trademark law concerning the board game, it is huge. The owner of the board game may utilize the trademark law for protecting the following aspects.

The name of the game: the famous example of a game’s name being trademarked is none other than MONOPOLY, a registered trademark from Hasbro. The trademark law equips the owner with the luxury to shield his game’s name. By earning the trademark on the name of the game, the owner makes sure that no other competitor can manufacture the game with a similar name as the owner. However, remember that trademark does not prevent another company from producing a similar game.
Protecting the logo and the slogan of the game: Similar to any other brand owner, the owner of the board games also gets the privilege to protect their logos and the slogans used in their game from any kind of unfortunate infringement.
The company’s name: Sometimes, merely protecting the name of the game is not sufficient as the name of the company manufacturing the game can lead to various complications. Therefore, to prevent such complications, the trademark law, along with the game’s name, safeguards the name of the company manufacturing the game. For instance, a company named “yES” is manufacturing a board game named “NO” and has earned a ton of customers. Suddenly another company comes into the market named “yESS” and starts producing a similar board game with a different name and eventually affects the sale of the company “yES”. In such a scenario, the earlier company having a trademark over the name “yES” can sue the new company for trademark infringement and can guard their profits. Furthermore, the law also protects the logos and the slogans affiliated with the company’s name.

Patent and the board games

Now is the time to approach the most important of all questions we mentioned earlier. The question that sometimes confuses experts of intellectual property. “Whether a board game can be patented or not?. Being an IPR enthusiast, I have researched a lot to provide the best possible answer to this question, however, in the end, I can only say the question and the answer are AS-IS i.e., confusing. Yes, you read it right. Nevertheless, we have to answer the question and we will answer it and will try to keep it as simple as we can.

Before answering the question, it is, firstly, important to be fully aware of “What, exactly, is a patent?”

A patent is a privilege provided especially to the inventor(s) i.e., a patent, for a limited period, granting an exclusive right to the inventor to exploit his invention economically. Without the prior permission of the patent holder, his invention can’t be used, distributed, imported or sold by any other person.

Coming back to our question, the game mechanics is the aspect of the board game that is made under the ambit of the patent law. Game mechanics, in layman terms, means a specific element of gameplay, for instance, some of the games include an element of auction or bidding, whereas some include the feature of a chit pull system. So, all these elements are termed, game mechanics. Now, these game mechanics can be safeguarded by patent law. However, that’s not the end of the answer. Merely having a game with certain mechanics does not qualify that game for patent protection. There are some compliances that the owner of the board game shall have to fulfil in order for him to be called the patent holder. What are these compliances? They are as follows:

The nature of the game must be “novel”: As we say in general “nakal ke liye bhi akal chahiye hoti ha”. It means “you shall apply your mind even if you are copying someone else’s work”. The same applies here, merely copying someone else’s work and making a few changes to it won’t make the game eligible for patent protection, the game shall be novel.
Non-obviousness of the game: The next compliance is the “non-obviousness”. It is somehow similar to the first compliance, however, what this compliance asks for is that the invented game shall not be obvious or is derived from something that is already prevailing in the market.
Usefulness: This is something ridiculous but being compliant, the owner has to comply with it. This says the game invented shall be for use i.e., it shall be used by the general public not just invented for mere invention. This is the easiest compliance to comply with as it is obvious that the inventor has invented the game to sell it.

Conclusion

To conclude this article, I just utter these few words. Irrespective of how much we curse the laws of our country they are the 4^th essential requirement after what we say “roti” “kapda” and “Makan”.

Commenting on laws regarding intellectual property in our country, it is likely to say that they, in a true sense, are acting as a protective shield for all the owners of the intellectual property. The topic we just discussed i.e IPR vis-à-vis the board games is a topic that won’t attract the limelight quite often, however, IPR is as relevant in the field of board games as it is anywhere else. Be its copyright, trademark or patent, each one carries its unique power to guard the board games against becoming a subject of infringement. It is pretty much recommenced to the owner of the board games to earn the badge of the “intellectual property rights owner”. It might cost them a few pennies to earn the protection but it will protect them from the ton of expenditure they might have to spend to beat the monster named “infringement”. Furthermore, knowing the profit earned via the sale of the game is their sole property, they can have a peaceful sleep. So, I would never mind spending a few pennies for the sake of peaceful sleep.

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Glasgow Climate Change Conference : all you need to know about CoP 26

By

Diganth Raj Sehgal

-

November 17, 2021

0

3.-Climate-change-will-lead-to-yield-shocks.-Photo-by-Rajarshi-Mitra — Image source: https://bit.ly/3lPCfsC

This article is authored by Akash Krishnan, a law student from ICFAI Law School, Hyderabad. It discusses in detail the effect of global warming across the world, the proceedings of CoP 26 and its impact on tackling climate change.

Table of Contents

Introduction

Three degrees can be the difference between snow and sleet and wearing a jacket or not. In simple words, three degrees of global warming would be catastrophic and would result in heatwaves, droughts, extreme precipitation and even natural fires across the globe. The scary thing is that the world is well on its way there. Since the industrial revolution, the Earth has warmed between 1.1 degrees celsius and 1.3 degrees celcius. Many rural parts of the world have suffered disproportionately over the years. Small-scale farmers are particularly vulnerable to climate change and there are over 600 million farmers around the world. Small-scale farmers with farmland of under 2 hectares produce around a third of the global food supply. Imagine living in a world where these farmers are no longer able to meet the global food needs because of climate change and you will have the answer to the question as to how climate change can affect your very basic needs for survival.

Over the years the United Nations Framework Convention on Climate Change has held several conferences to resolve the issue of climate change and the 26th Conference of Parties (CoP 26) that was held in Glasgow from October 31^st to 13^th November was one of the most recent conferences in this regard. The goal of this conference was to make countries commit to individual goals so that global warming does not exceed 1.5 degrees celsius. Let us now look into the proceedings of the conference and what was the final outcome.

A brief summary of CoP 26

It was supposed to be the summit that would stop global warming but now there is deep disappointment with environmentalists saying CoP 26 fell short of the urgent action that’s needed. Negotiations in Glasgow went on beyond the deadline as draft after draft came closer to producing a global agreement to restrict greenhouse gases. But the final document was met with anger after India scuppered its key provision to phase out coal power.

The COP 26 summit began with hopes to save the planet and ended with an apology from the President of the United Nations Climate Change Conference wherein he stated that the expected results were not met and he was sorry for the disappointment caused to the world at large. Delegates did manage to come to an agreement at the end of the conference which has been seen as a final hour, last-ditch effort to stop catastrophic climate change. Most countries agreed on new and more ambitious targets for reducing emissions but the pledges fell short of what science says is needed to stop the world from heating beyond a dangerous 1.5-degrees celsius. India insisted on a last-minute watering down of the final text changing references of a coal phase-out to a coal phase down. Wealthy nations resisted calls to create a mechanism to compensate poor countries suffering the worst effects of climate change.

UN Secretary-General Antonio Guterres urged countries to do more. He stated that there was an urgent need to accelerate global actions so that the goal of less than 1.5 degrees celsius global heat is kept alive. He further stated that nations should go into emergency mode or else the world will soon be knocking on the doors of a climate catastrophe. World leaders agreed to reconvene in Egypt for talks next year where major emitters will be asked to present new targets. But with the goal of 1.5 degrees celsius now on life support, activists say that CoP 27 is already dead.

On the actual issue of the watering down of the phase-out of coal provisions, experts state that the mechanism adopted under COP 26 is not what the world needs to achieve a 1.5-degree celsius goal. The text around fossil fuels was even more dubious because it was only looking forward to cutting out inefficient subsidies and not cutting down the use of fossil fuels itself. Governments in the bigger emitter countries had turned to a set of policies that were not in line with how climate issues needed to be dealt with.

India’s effort to water down the coal phase-out is being debated across the world. From an Indian perspective, they had tried to force developed countries to make commitments that they owe to the rest of the world. India has insisted that they are making commitments despite serious developmental challenges. Prime Minister Narendra Modi stated that India will adopt a five staged process, i.e., the “panchamrit” in its attempt to combat climate change. The five stages include raising the non-fossil fuel-based energy capacity of the country to 500 GW by 2030, using renewable sources of energy to satisfy half the counties energy requirements, reducing the carbon emissions by 1 billion tonnes by 2030, reducing the carbon intensity of the economy to 45% by 2030 and cut down carbon emissions to zero by the year 2070. India stated that this shows its commitment to mitigating climate change despite the challenges it is facing as a developing country but it is entitled to the responsible use of coal which is why the language watering down was pushed for.

Rich nations have been reluctant to agree to any mechanism to provide funding for the loss and damage caused to the climate. From an Indian perspective, this has caused and contributed to a trust deficit especially when a hundred million dollar commitment to mitigate climate change in developing countries was missed in 2020. India insists that developed countries grew as a consequence of their heavy reliance on coal and that these developing countries who are understanding what climate change is should be allowed to use coal responsibly. Simply put, it’s a case of alleging that the developed countries grew over the last 70-80 years by relying on the use of coal but now are insisting that India and other developing countries should be doing more by committing to cuts in carbon emissions. This has led to resentment and pushback from developing countries in CoP 26. However, India insisted that it is doing more than it can by committing to these climate change goals.

Glasgow Climate Pact

Over 197 countries across the world participated in this conference and signed an agreement to ensure the protection and preservation of climate so as to meet the 1.5-degree celsius goal. The relevant portions of the Climate Pact have been enumerated below:

Science and urgency

The Pact recognised the importance and need of the best available scientific technologies and innovations to combat climate change.
It welcomed the contributions of Working Group I to the Intergovernmental Panel on Climate Change and several other Intergovernmental Panels and International organisations regarding advanced technological measures that could be adopted.
It expressed concern over the increasing global warming and stressed the urgency of coming up with an action plan to deal with it and to mitigate activities causing carbon emissions in the future.

Adaptation

It noted that with every passing moment, any activity that causes carbon emissions will contribute to the increase in temperature globally thereby causing adverse effects on the common people of the world.
It emphasised the need for finance, capacity-building and technology transfer, to enhance adaptive capacity, strengthen resilience and reduce vulnerability to climate change in line with the best available science, taking into account the priorities and needs of developing countries and welcomed countries to submit adaptation plans in this regard.

Adaptation finance

It noted that developing and under-developed countries are not equipped with sufficient funds to tackle the issue and effects of climate change.
It urged the developed countries to come together and set up an action plan so as to help the developing and under-developed countries by assisting them in climate finance, technology transfer and capacity-building processes.
It recognised the need and urgency for climate finance and stated that developed countries should try and increase their funding towards the climate adaptation funds and help the developing and under-developed countries to use these funds to adapt to climate change more quickly.
It also emphasised the need for multilateral development banks, other financial institutions and the private sector to provide finances and other resources that were required to achieve the climate adaptation plans globally.

Mitigation

It noted that there was an urgent need to limit the temperature increase to 1.5 °C above pre-industrial levels as this would help reduce the effects and risks associated with climate change globally and also noted that all nations should work together to achieve this global target.
To meet this goal, it suggested that there should be a sustained reduction in the emissions of greenhouse gasses and that carbon emissions should be brought down to at least 45% by the year 2030 so that by 2050, the global carbon emissions can be brought down to zero.
It called for a collective action that has to be taken by the nations to reduce non-carbon dioxide greenhouse gas emissions, including methane by the year 2030.
It recommended that nations should adopt low-energy emissions systems and renewable energy sources to boost the effort towards climate change.
It recommended the phase-down of unabated coal power and the phase-out of inefficient fossil fuel subsidies.
It also emphasised the need to maintain forests and increase green cover globally so that this acts as a natural sink or reservoir of greenhouse gases.

Loss and damage

It recognised that, with time, the effects of climate change will increase thereby causing loss to life and property. The increase in temperature will pose a social, economic and environmental threat globally.
It emphasised the role of all the stakeholders including the indigenous people and local communities to battle the adverse effects of climate change and to protect the environment.
It urged that nations should support each other by providing appropriate climate financing, technology transfer and capacity building mechanisms so as to help the nations in the establishment of mechanisms to avert, minimise and address the loss and damage that they may suffer due to climate change.
It urged developed countries, the operating entities of the Financial Mechanism, United Nations entities and intergovernmental organizations and other bilateral and multilateral institutions, including non-governmental organizations and private sources, to provide enhanced and additional support for activities addressing loss and damage associated with the adverse effects of climate change

Implementation

It emphasised the need for all nations to implement and continue to work on the targets that had been set in 2018, 2019 and 2020 and also to work towards establishing new targets to combat climate change.
It urged all the nations to meet with all the outstanding pledges without any undue delay as soon as possible.
It emphasised the need to incorporate the concerns of the developing countries while cutting down the emission levels in line with the importance of adopting an immediate action plan to combat climate change. In doing so, it encouraged the nations to form both national and local level policies so that the carbon emissions can be controlled at every level.
It recognised the importance of protecting, conserving and restoring ecosystems to deliver crucial services, including acting as sinks and reservoirs of greenhouse gases, reducing vulnerability to climate change impacts and supporting sustainable livelihoods, including for indigenous peoples and local communities
It recognised the need to promote sustainable development and the creation of quality jobs while keeping in mind the need to reduce greenhouse gases and shutting down industries exclusively engaging in these activities.

Conclusion

India is facing the consequences of climate change and there have been several recent extreme climatic changes around the country like floods, cyclones etc. There is not only a loss of life and property but there could also be potential loss of land as land is getting submerged as a consequence of climate change. According to data, if India misses the 1.5. degree celsius goal, it would be fatal to survive outside in the bigger cities for more than three to four hours because of the increase in temperatures. Today, the Indian government almost has to negotiate a trade-off. India has suffered massively due to the coronavirus lockdowns and it is a question of how much of today can be traded off for the future.

Although the targets that were set for this CoP are far from met, we can only hope that the CoP that is scheduled for next year will help in the formation of a policy that would help the world reach the goal of 1.5 degrees celsius.

References

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FTC Guidance clarifying the scope of its health breach notification rule for health apps and connected devices

By

Abanti Bose

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November 17, 2021

0

This article is written by Hassan Farooque, pursuing Diploma in International Data Protection and Privacy Laws from Lawsikho. The article has been edited by Prashant Baviskar (Associate, LawSikho) and Smriti Katiyar (Associate, LawSikho).

Table of Contents

Introduction

As any rational mind would ask “why”, it is evident that things that have been practised for a while have not been questioned or bought under the purview of the law as to understand what is legally permissible and what is unnecessary or illegal. Over the period of time, there has been explosive development in the field of data. Data is used in every practical aspect of the business pyramid such as health, banking, information technology, etc.

Many times the law being a biological creature has restrictions to recognize or exercise justice due to the underdeveloped statute. At times it also happens that the authority or Court are unable to dispense the case appropriately due to the lack of evolution or the loopholes in the statute. Some countries are quick to adapt to the latest problems, a judiciary that is well equipped to deal with novel problems is basically a sign of the development of the country or state. In view thereof, today I shall provide my view on the scope of the FTC guidelines with regards to the Rule of health apps and connected devices.

On 15th September 2021, the Federal Trade Commission (“FTC”) of the United States of America, to offer guidance on the scope of the FTC’s Health Breach Notification Rule, 16 C.F.R. Part 318 issued a notification on breaches by the Health Apps and other connected devices (“Rule”), so as to bring under the ambit entities that were previously un-recognized under the Health Insurance Portability and Accountability Act (“HIPAA”).

Considering the rapid growth of apps and devices that deal with sensitive health data, the FTC’s Health Breach Notification takes into the purview that the entities governed by HIPAA face accountability when the person’s sensitive health information is breached. By virtue of the Rule, entities dealing with personal health records (“PHR”) and PHR-related are bound to notify U.S. consumers and the FTC, and in certain specific cases the media, considering breach of unsecured identifiable health information or invite civil penalties for violations respectively. The said Rule also brings under its ambit the service provided by such entities. Basically, concealing breaches of sensitive health information by the entities or their vendors, under the purview of this Rule are deemed illegal.

FTC’s Guidelines

Oddly though the Rule was issued by the FTC more than a decade ago, the proliferation in health apps and connected devices pushed its requirements to make them more essential than ever. Unlike the underdeveloped countries who are still lacking legislation for the protection of such sensitive health information, the United States appears to be taking initiative in developing such laws or legislations i.e. is basically leading the way. The directive towards mobile health apps to examine their obligations under the Rule, such as the following guidelines and interactive tools to businesses or entities seeking to implement sound data security:

Minimize data

Does the entity need to collect or retain a person’s data?

At the inception, if data is not collecting it, the entity doesn’t need to spend resources towards protecting it. Whoever collects and or retains data, is bound to safeguard it. De-identify data wherever the data can be linked or associated to identify a natural person

Limit access and permissions

What permissions does the entity’s app need? The entity should ensure that the natural person’s data that is collected is not unnecessary. For example, if the entity is developing an app, consider what it requires in comparison to other resources like- person’s contacts, camera, location, etc.

Keep authentication in mind

How does the entity generate credentials? The entity should invest resources towards the design, implementation and testing of authentication of the data.

Consider the mobile ecosystem

Is the entity relying upon mobile platforms or other connected devils to protect sensitive data?

With the development in technology, there are various devices such as mobile, iPad, Fitbit’s, etc, wherein various kinds of data are collected from. It’s not necessary that these devices use the same API’s, but it should ensure the security of the data and grant permissions to third parties by following safety protocols.

Implement security by design

How can the entity develop a culture of security? The entity should employ staff that are responsible for data security. Depending upon the size of the entity and the complex processes involved, the entity may appoint a team of persons, as well as a senior executive to oversee the implementation of security by design.

Don’t reinvent the wheel

Is the entity taking advantage of the precedents displayed about security? Sometimes entities delve into using free or low-cost tools to protect the security of the data and help protect their privacy.

Innovate how you communicate with users

How will the entity inform the users about their app’s security and privacy features? The entities should endeavour to be simple, clear and direct. The entities should avoid complicated terms or language which could be understood by the layman. Since the entity’s health app is likely to collect personal data; like blood pressure, eating habits, sugar levels, express consent should be obtained by the entity.

Don’t forget about other applicable laws

If the entity is developing a health app, they should first determine which laws apply to them. One may be under the scope of the FTC Act, HIPAA or the FDA’s Federal Food, Drug & Cosmetic Act.

There may also be laws of the state that the entities must comply with. Keeping the entity abreast of the various laws would help it avoid or attract penalties therein.

The fact of trust in advertising and or privacy applies to the product of the entity. Entities should disclose to their user users the real reason behind why their data is being collected and be transparent about their practices.

Despite the above, the FTC never enforced the rule, though many appear to misunderstand its necessity. What this means is that the entities or their vendors have an everlasting obligation to notify its breaches under the Rule.

“Breach of the security of the personal health records”

The Rule brings under its ambit the personal health records that contain identifiable health information created or received or handled by the vendors of the health care providers. The Rule takes cognizance when such entities or their vendors experience a “breach of security”. By referring to the definition with the Rule, the developer of a health app or connected device is termed as a “healthcare provider” because it “furnish/es” health care services or supplies.

Take for instance that a health app is in breach of disclosing sensitive health information without the person’s authorization; it would be termed as a breach of security under the Rule.

The promulgation of the Rule through the FTC requires that the “personal record” be an electronic record or data that can be drawn from various sources. The apps are covered by the scope of the Rule if they are capable of gathering information from various sources, such as a combination of consumer inputs and application programming interfaces (“APIs”). For example, an entity is covered if it collects information directly from its user and has the technical ability to draw data through an API that synchronizes with the user’s fitness tracker. Similarly, if the entity deals with information from multiple sources is covered, despite the health information originating from only one source. For example, if a heart rate monitoring app derives information only from one source (e.g. a user’s blood pressure levels), but also take non-health information from another source (e.g. dates from the user’s phone’s calendar), it comes under the purview of the Rule.

Further, it is to be noted that the “breach” is not limited to cyber-security intrusions or vicious behaviour, as denoted by the Commission. Every incident regarding unauthorized access, along with divulging information without the user’s consent, triggers the cause of action under the Rule.

Considering the level of development, Americans are affluent users of apps and other technologies to track ailments, diagnoses, treatments, fitness levels, and medicines for pharmaceutical companies, sleep, diet, and other vital aspects, this Rule becomes more incumbent than ever. Violations of the Rule may lead to the entities being subjected to civil penalties of $43,792 per violation per day.

Conclusion

Taking from the above, the implementation of such laws is beneficial to the country and its citizens at large. Any developed country would like to protect the rights of its citizens by being in touch with the change in times and traditions. Earlier paper trails would lead to scandals but in today’s new age, data is the new commodity and like in any era, the ones who understand the change are better prepared than those that aren’t.

If countries like India can take up the cause of data protection in such depth as the American’s, there would be finer improvements that could impact the overall outcome of laws such as protecting health breaches from health apps or connected devices, it’s likely that it would invite investment from international companies or brands who won’t be able to take the Indian citizens for a joy ride.

References

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.

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What you need to know about the Canadian trademark filed by Zomato USA

By

Abanti Bose

-

November 16, 2021

0

thebridgechronicle_2021-02_5fe97c2f-8c88-41b9-aeae-7cf314dce724_zomato_1200x600 (1) — Image source-https://rb.gy/d2cs0w

This article is written by Tarandeep Singh Khurana, pursuing Diploma in Intellectual Property, Media and Entertainment Laws from LawSikho.

Table of Contents

Introduction

It is a constant endeavour of the enterprises to expand their operations by entering into new geographical markets. Cross border mergers and acquisitions is an effective strategy to meet the desired goal of expansion in a relatively short span of time. The enterprise making the acquisition is able to ride over the goodwill of the acquired company and is able to make inroads in the new market. Thus the acquirer company gains a substantial market share of the customers who are already familiar with the homegrown brand. The acquirer is able to gain significant insights into customer tastes and preferences. Lastly, the acquirer also gets an opportunity to introduce its products and services to the customers. For an online enterprise, the success of such an endeavour would lie in the seamless transition/migration of customers from the acquired platform to its own platform. This would also entail overcoming the technical challenges associated with such integration so as to harness the efficiencies arising out of economies of scale. Pursuing this strategy Zomato a restaurant aggregator and food delivery company having its headquarters in India acquired a popular North American restaurant reviewer, Urbanspoon. The acquisition helped Zomato to enter the markets of the USA, Canada and Australia. The acquisition was aimed at expanding the number of countries where Zomato could provide its services. Urbanspoon was a platform that was solely providing information. It was an enterprise that would provide an online local restaurant guide generated by the aggregate reviews of professional food critics, bloggers and diners. Apart from providing information pertaining to menus and reviews based on customers Zomato also provides food delivery options in India. However, in a short span of time, Zomato closed the operations of Urbanspoon. The acquisition and subsequent closure of Urbanspoon led to a substantial addition of intellectual property assets namely trademarks in Zomato’s portfolio. The present article is an attempt to understand the journey undertaken by Zomato in managing the various trademarks in its portfolio with reference to the geographical region of Canada.

What are trademarks?

Trademarks are marks/signs which provide the owner with the ability to distinguish its products/services and assure the customer of minimum standards of quality that can be associated with the said mark. Apart from the commonly used word marks, trademarks can also be in the form of letters, numerals, drawings, symbols, and three-dimensional features like the shape of packaging of goods. To make the most efficient use of trademarks it is imperative that only the original rights holder/user is using the said trademarks while others are prevented from using the same or similar trademark. This is possible only when the users are able to establish ownership over the said trademarks. The aforesaid goal is achieved either by simply registering the trademark or taking the course of establishing a bona fide prior use and the ensuing reputation along with it. The former is an exhaustive process while the latter is tedious and often fraught with the uncertainties associated with differential yardsticks adopted by the trademark laws of various countries. Further, the registration provides legal certainty to the rights of holders which can be enforced especially in the event of litigation. Thus registration of the trademarks is an all-encompassing process for ensuring trademark protection.

Trademark registration

It is the process by which a trademark is entered into the trademarks registry of a particular country after the due process of trademark search, filing, examination, and opposition if any. If all the conditions are satisfied a trademark is published and granted. The process of registration gives recognition to the rights of the trademark owner. The term of trademark registration can vary across jurisdictions but mostly it is for a period of 10 years which can be renewed indefinitely on the payment of regular fees and establishing regular use of the registered trademark. Since the trademark protection is territorial in nature the registration needs to be done across the jurisdictions of various countries to ensure the goal of trademark protection. The trademarks are either registered individually in all the prospective countries or the Madrid system is adopted. Under this centralized system, a single application is filed along with one set of fees. This gives protection to the said trademark in up to 125 countries. Quite often trademarks are abandoned i.e. their registration is cancelled if they are not used for a considerable period of time ever since their registration. In Canada, the registration of a trademark would require that the trademark is entered on the Trademarks Register of the Canadian Intellectual Property Office of Industry Canada. It takes about 22 to 24 months for a trademark to be registered in Canada.

Zomato in the USA

Zomato Inc. was incorporated as a corporation on 16/12/2014 as Zomato USA Inc. with the State of Delaware Secretary of State Division of Corporations under Section 101 and 102 of the General Corporation Law of the State of Delaware. Its name was changed to Zomato Inc on 18/12/2014. Zomato Inc. is enabled to engage in the business of premium content listing and providing advertising services. Zomato USA, LLC was incorporated as a Delaware limited liability company. It is enabled to do business of premium content listing and providing advertising services. Currently, it does not have any active business operations. The word URBANSPOON has been registered in the United States of America as a service mark. After the acquisition, Zomato USA LLC became the owner of the mark. It is noteworthy that the trademark Zomato was registered in the USA by Zomato Media Private Limited company INDIA i.e. the Indian entity. Zomato dissolved its subsidiary namely Zomato USA LLC after a month of its listing on the National Stock Exchange in India.

Zomato in Canada

Canada is one of the markets wherein Zomato was striving to expand its operations aggressively. Zomato Canada Inc. (“ZCI”) was incorporated on 26/06/2014 under the Canada Business Corporations Act. Zomato Canada Inc is enabled to engage in the business of premium content listing and advertising services. However, with respect to its operations its position is akin to that of Zomato LLC i.e. currently it is not having any active business operations. Currently, Zomato has three registered and two abandoned trademarks under the Canadian Trademarks Database.

Registered trademarks in Canada

Out of the three registered trademarks, two trademarks namely the URBANSPOON word trademark and URBANSPOON design mark $F:\LAWSIKHO-IPR\ARTICELE-2\1658772.jpg$ were the result/outcome of the acquisition of Urbanspoon by Zomato. Thus the title of the registered trademarks was passed on to Zomato USA LLC. The third registered trademark is that of ‘Zomato’ that was registered by Zomato Media Private Limited India.

The words URBANSPOON and URBAN SPOON were filed for registration by Wanderspot LLC (erstwhile Urbanspoon) which was both the applicant and the registrant in Canada on 16/09/2010. The trademark was published in the Trademarks Journal of Canadian Intellectual Property Office bearing Volume No 58 of Issue No 2973 on page number 101 dated 19/10/2011. The said trademark was registered on 06/03/2012 with the registration number TMA819228. The registration was based on prior use in Canada since 22/08/2007 and used in the United States of America on services. It was registered in the United States of America on 23/09/2008. However, after the acquisition of Urbanspoon by Zomato the change in title of the registered trademark was effectuated on 19/03/2015. In the Canadian Trademarks Database, the trademarks were registered under classes 9, 35 and 43 of the NICE classification. The NICE classification is the outcome of the NICE Agreement (1957). It is an international system for the classification of goods and services that is used in the applications for the registration of marks for the goods and services. This results in harmonization in the international system of the classification of goods and services for the registration of trademarks.

The description given under the NICE classification for the aforementioned class of goods and services is:

Class 9- It includes apparatus and instruments for scientific or research purposes, audiovisual and information technology equipment, as well as safety and life-saving equipment.
Class 35- It includes services rendered by persons or organizations principally with the object of help in the working or management of a commercial undertaking, or help in the management of the business affairs or commercial functions of an industrial or commercial enterprise and services rendered by advertising establishments primarily undertaking communications to the public, declarations or announcements by all means of diffusion and concerning all kinds of goods or services.
Class 43- It includes services provided in relation to the preparation of food and drink for consumption, as well as services for providing temporary accommodation.

However the description of goods and services claimed by the users of the trademark was specifically for:

Computer application software and downloadable software namely mobile applications for handheld computers, digital electronic devices, wireless devices and internet-capable devices that allow users to locate restaurants and provide information on restaurants, including prices, compilations, rankings, ratings, reviews, referrals, contact information, and recommendations.
Providing an online interactive website obtaining users’ comments concerning restaurants; providing information, namely, compilations, rankings, ratings, reviews, referrals, contact information, and recommendations concerning restaurants using a global computer network.

The design mark $F:\LAWSIKHO-IPR\ARTICELE-2\1658772.jpg$ was filed for registration by Wanderspot LLC (erstwhile Urbanspoon) in Canada on 08/01/2014. However, after the acquisition, the requisite changes in its title were made on 19/03/2015. Zomato USA LLC with its office in Seattle Washington became the registrant of the trademark registered in Canada. The said trademark was published in the Trademarks Journal of Canadian Intellectual Property Office bearing Volume No 63 No.3204 on page 177 dated 23/03/2016. It was granted registration on 20/12/2016 with the registration number TMA958494 under the category of ‘design’ trademark (logo trademark) under the code 11.1.1 and A 11.1.2 Vienna Classification which are used for describing knives, forks and spoons. The Vienna Classification is an international classification of the figurative elements of marks. It was established by the Vienna Agreement. Since the design trademark was an extension of the original word trademark the goods and services for which it was registered were similar to the word trademark (URBANSPOON) which was registered in 2010. Under the Class 9, 35 and 43 of the NICE classification.

The mark ZOMATO was filed for registration in Canada on 30/12/2013 bearing Application No: 1658015, as a wordmark by Zomato Media Private Limited. Incidentally, the word ZOMATO has no meaning. The trademark was filed for a diverse set of products and services. The class of such goods and services under the NICE classification was as under:

Class 1- Chemicals and adhesives.
Class 16-Paper and printed goods.
Class 35- Advertising, marketing, promotional and business.
Class 39- Transportation and storage.
Class 42- Computer and scientific.
Class 43- Accommodation, food and drink.

The registration was done for a wide array of goods and services namely:

Goods

Paper; cardboard; printed timetables; printed tags; printed awards; bookbinding material; photographs; adhesives for use in the furniture industry; adhesives for use in the manufacture of furniture; adhesives for use in the textile industry; adhesives for use in the manufacture of plywood; books; periodical publications.
Stationery agendas; stationery binders; stationery labels; adhesives for use in the consumer packaging industry.

Services

Operation of an online interactive computer website for customers to customize and order photo gift products bearing image data of the customer and providing advertising space in a periodical; tour guide services and travel guide services; delivery of food by restaurants; providing advertising space in a periodical; food preparation services; delivery of food by restaurants; restaurant services; café services; bar services; hotel services; take-out restaurant services.
Advertising agency services; advertising agencies; business management services; business administration services; office management.

The said trademark was published in the Trademarks Journal of Canadian Intellectual Property Office bearing Volume No 61 of Issue No 3130 page 300 dated 22/10/2014. The mark was filed for ‘proposed’ to be used in Canada for wares and on services. It was granted registration on 23/12/2016 bearing the registration number TMA958797. The registered trademark will expire on 23/12/2031.

Abandoned trademarks

Zomato Private Limited was the applicant and registrant for the two abandoned trademarks. The two trademarks were design trademarks namely, the Spoon Design and the Heart Logo. Both the design trademarks were claimed for being in use in Canada since 21/10/2014. However, both of them were given the status of ‘abandoned’ because of the withdrawal of their application under Section 36 of the Trademarks Act R.S.C., 1985, c. T-13.

The Heart Logo $F:\LAWSIKHO-IPR\ARTICELE-ZOMAT0\New folder (5)\10.gif$ was filed for a registration bearing Application Number 1700790 on 03/11/2014 and was granted registration on 04/11/2016. The said trademark was published in the Trademarks Journal of Canadian Intellectual Property Office bearing Volume No 63 No.3221 on page 231 dated 20/07/2016. At the time of the registration the description of the design trademark under the Vienna system of classification was given as:

2.9.1Hearts -Note: Including also hearts represented as a symbol or on playing cards.
11.1.1 Knives, forks and spoons.
A 11.1.4 Forks.
26.11.3 More than two lines or two bands.
A 26.11.9 Oblique lines or bands.
A 26.11.10 Straight lines or bands.

The Heart Logo was registered to comprehensively cover the category of goods and services that were similar to those that were registered for the word mark of Zomato. It was clearly a case of a distinct word and a design trademark for an enterprise covering the same set of goods and services. At the later stage, it was a prudent strategy to focus solely on the adoption and use of a singular word trademark namely Zomato.

F:\LAWSIKHO-IPR\ARTICELE-ZOMAT0\New folder (5)\10 (1).gif

The Spoon Design trademark was filed for a registration bearing application number 1753783 on 06/11/2015 by Zomato Private Limited and was granted registration on 14/10/2016. The said trademark was published in the Trademarks Journal of Canadian Intellectual Property Office bearing Volume No 63 No.3218 on page 1532 dated 29/06/2016. The description of the said trademark at the time of registration under the Vienna classification was given as:

11.1.1 Knives, forks and spoons,
A 11.1.2 Spoons,
26.4.1 Squares,
26.4.4 Other irregular parallelograms, trapezia and quadrilaterals, quadrilaterals containing one or more rounded corners,
A 26.4.5 One quadrilateral,
A 26.4.16 Quadrilaterals containing other figurative elements,
A 26.4.24 Quadrilaterals with dark surfaces or parts of surfaces.

The Spoon Design trademark was registered for the following goods and services:

Goods

Computer application software and downloadable software in the nature of mobile applications for handheld computers, digital electronic devices, wireless devices and Internet capable devices that allow users to locate restaurants and provide information on restaurants, including prices, compilations, ranking, ratings, reviews, referrals, contact information and recommendations.

Services

Advertising the goods and services of others; business management, business administration; online advertising services for others via a computer communications network; providing a searchable online advertising guide featuring restaurants, restaurant take-out and delivery services, bars, cafés, hotel services and eateries; provision of advertising space by electronic means namely, websites and mobile device applications and global information networks; providing a website featuring information namely, ratings, reviews and recommendations concerning restaurants, restaurant take-out and delivery services, bars, clubs, cafes, hotels and eateries.
Provision of information namely, ratings, reviews and recommendations of restaurants, restaurant take-out and delivery services, bars, clubs, cafes, hotels and eateries.
Provision of online ordering services for food and drink, namely providing online ordering services for take-out and delivery services from restaurants, bars, clubs, cafes, hotels and eateries.

Conclusion

Zomato by virtue of acquiring Urbanspoon was able to add a substantial number of customers and restaurants primarily in the newer geographical markets. Since Zomato is a two-sided platform, the acquisition was a massive value addition. It was also significant in terms of invaluable data that could have been harnessed to understand the unique market conditions. However in a relatively short span of time following its acquisition the operations of Urbanspoon were shut down. The content and the accounts of the users were directed to Zomato. Clearly, the goal was to bring the brand/trademark of Zomato at the forefront instead of allowing Urbanspoon to continue as an entity under its tutelage. The trademark Zomato was covering a wider class of goods and services as compared to Urbanspoon. It seems the strategy was to phase out the acquired brand of Urbanspoon at the earliest and make the customers aware and adopt the new brand, namely Zomato. The aim was to reduce the learning curve for Zomato so as to acquire a position of strength in the newer geographical markets of the USA and Canada. This was necessitated by Zomato’s appetite and craving to compete with its rival Yelp. However, the operations in Canada and USA have been rolled back due to increased losses and insignificant revenue contributions from these markets. This also includes the closure of another acquisition of Zomato namely, NexTable a US-based online table reservation platform that was acquired by Zomato in 2015. The closure was driven by the small size of the table reservation and management in the USA. Despite investing huge sums on acquisitions there was a failure to monetize the assets namely goodwill and trademarks to their advantage. There was a futile attempt to merge the spoon trademark of Urbanspoon with the word Zomato. $F:\LAWSIKHO-IPR\ARTICELE-ZOMAT0\zomato-spoon-300x71.png$ However, Zomato had to discard the spoon and rely solely on the word Zomato. In hindsight, the pursuit of acquisitions did not yield the desired results and it was merely a case of squandering of capital. Clearly, a judicious approach while acquiring newer enterprises could have been adopted. In a recent noteworthy development, Zomato has closed its operations in Lebanon.

The winding-up of operations in the loss-making centres and focusing solely on the profit-making centres was a decision in the right direction, albeit a lesson learnt after swallowing an expensive bitter pill of acquisitions.

F:\LAWSIKHO-IPR\ARTICELE-ZOMAT0\RESOURCES\New folder\urbanspoon-zomato2-620x862-2.png

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Important clauses to remember while drafting sponsor term loan agreement in the US

By

Rachit Garg

-

November 16, 2021

0

This article has been written by Niketa Chitnis, pursuing a Diploma in US Contract Drafting and Paralegal Studies from LawSikho.

Table of Contents

Introduction

Sponsor Term Loan Agreement refers to a loan given by the Sponsor to the Borrower. It provides a lump sum of cash to the borrower in exchange for specific borrowing terms. Normally Sponsor Term Loan Agreements are meant for established small businesses with sound financial statements. Borrower agrees to repay such loans according to a certain repayment schedule for a fixed or floating interest, in exchange for a specified amount of cash. These loans require substantial down payments to reduce the payment amounts and the overall cost of the loan.

Sponsor Term Loan Agreements offer more flexibility to the borrower along with lower interest rates. These agreements for short and intermediate terms may require balloon payment, unlike long-term facilities which come with fixed payments.

However, it is vital to understand the important clauses in Sponsor Term Loan Agreements before drafting such an agreement. Sponsor Term Loan Agreement is a complex document, and it is an agreement with the sponsor and the borrower that the borrower signs to get their loan. It is always important to draft water-tight agreements to prevent disputes and ensuing heartaches for the client, in the future.

Simple Sponsor Term Loan Agreements can be a little more than short letters, explaining how long a borrower has to pay back the money and what interest would be added to the principal. Whereas, others including mortgages, are elaborate documents that shall be filed as public records and allow the Sponsor to repossess the borrower’s property if the loan isn’t repaid as agreed under the Agreement.

Sponsor Term Loan Agreement and its conditions for repayment are governed by both state and federal guidelines in order to prevent illegal or excessive interest rates on repayment of such loans.

Key Clauses to Consider while drafting Sponsor Term Loan Agreement in the US

Sponsor Term Loan Agreement generally include covenants, the value of collateral involved, interest rate, guarantees, term and duration to repay the loan, etc. One should take extra care while drafting the following clauses:

Definitions

After the recital of the contract, it is important to define terms that have a technical meaning or to which you intend to give a technical meaning. This clause can be also used to put one word for a list of things. For instance, assets may be defined as “assets may include movable as well as immovable items”.

Interest

In Sponsor Term Loan Agreement, the interest clause is crucial as it states the interest rate on the loan. This clause gives a clear understanding of the exact amount of interest rate obligation associated with the loan. There are two main categories of interest rates:

(a) Fixed fee rates:

Fixed fee rate is set at a given number. It does not change during the period of repayment of the loan. (i.e., 13%). Calculations of fixed fee rates are much easier and not at all complex.

(b) Floating fee rates:

Floating fee rate is just the opposite of a fixed fee rate. It is based on an interest rate margin added to a benchmark rate (i.e., 5%+ the benchmark rate). Under this, the interest rate fluctuates with time.

Generally, more complex sponsor term loan agreements use a floating fee rate. However, the basic sponsor term loan agreements commonly use a fixed fee rate.

Interest is usually payable at either at the end of each interest period (including quarterly, half-yearly or annual) or at the term of the loan.

Default Interest

A well-drafted sponsor term loan agreement will also include a default interest clause. This increases the interest rate payable on amounts not paid when they fall due. The default rate shall accurately reflect the cost amount not paid by the due date. If the default interest rate is excessive, it could be deemed as a ‘penalty’ rate. If this occurs, the sponsor term loan agreement will not be enforceable if a dispute arises.

Prepayment

The sponsor term loan agreement should allow borrowers to repay the loan earlier than the term period. This is called making a prepayment and it makes the loan more flexible. This clause should allow prepayment at the end of the interest period, so as to avoid any payment of breakage costs. This clause can also include mandatory prepayment of the loan under certain circumstances, such as on the sale of the borrower’s business.

There are certain prepayment clauses that penalise the borrower with prepaid fees and penalties for doing so. Prepayment penalties are applied to protect the sponsor, who expects a certain return on his loan over a certain period of time.

Committed or uncommitted loan agreement

Sponsor term loan agreement may be either committed or uncommitted. In case of a cothe committed sponsor term loan, the sponsor is contractually obliged to lend the borrower the loan amount, once they satisfy certain conditions precedents. Such condition precedents are to be set out in a schedule of the sponsor term loan agreement. If the sponsor term loan is not committed, there is no need for a condition precedent schedule.

Events of Default

In the case of sponsor term loan agreement, it is essential to contain an event of default clause. The event of default brings the borrower into default. This definition could change depending on the type of loan and the position of sponsor and borrower.

The major events of default would include:

(a) Cross-default, if a default is made under any other on-demand facilities provided by the sponsor to the borrower, it will automatically cause a default under this sponsor term loan agreement.

(b) Any breach in terms of sponsor term loan agreement will automatically cause a default.

(c) Non-payment of interest or capital automatically triggers default.

(d) Insolvency of the borrower is also an event of default.

It makes the borrower liable for a myriad of potential legal damages to compensate the sponsor for any losses suffered. This clause protects the sponsor from borrowers not repaying their loans. Under this clause, the sponsor can refuse to lend more money to the borrower, or request immediate repayment of the loan, or take possession of the secured property and sell the same for repayment or ask any guarantors of the loan to repay on behalf of the borrower.

Repayment and Method of Payment

Sponsor term loan agreements are sponsored for specific tenure and repayment schedules. Such repayment schedule or a set date shall be mentioned in the agreement. This clause should also include the method by which the loan shall be repaid to the sponsor.

Secured or Unsecured

A Majority of sponsor term loans are secured against an asset. However, in certain cases, the parties may agree to not secure the facility. This usually increases the sponsor’s risk, leading to a flow effect to other areas of the sponsor term loan agreement, For instance, the sponsor may charge a higher interest rate on the loan.

Bilateral or Syndicated

Bilateral loans are funds provided by a sponsor to one borrower. Whereas, on contrary, a syndicated loan involves two or more sponsors jointly providing loans to one or more borrowers. Between these two types of loans, bilateral loans are more common in simpler basic transactions. Generally, a loan may be syndicated if the sponsors are corporate, or investment banks and the amount of loan is very significant.

Choice of Law

A Sponsor term loan agreement should also mention the choice of law under which the agreement would be governed. Laws governing specific parts of the agreement in one state of the US may differ from the same law in another state of the US. Thus, it is important to identify state laws to which the agreement will be subject. This term is also called “Conflict of Law”.

Severability

This clause states that the terms of the agreement are independent of each other. Thus, if one condition of the sponsor term agreement is deemed unenforceable by law, the remaining conditions will continue to be valid.

Arbitration

This clause requires the parties to resolve their disputes through an arbitration process as opposed to the traditional court system. Nowadays mandatory arbitration is an increasingly popular provision in sponsor term loan agreements.

Amendment Clause

A Sponsor may amend any clause in the sponsor term loan agreement, that they want with or without intimating the borrower.

Notification Clause

This clause states that the customer has to inform the sponsor of any change in his employment, or profession, or business, or change in income levels, or residential address, change in residential status, etc. during the term of the loan. This clause shall include the time frame within which such information has to be notified by the customer and also the mode of notification.

Conclusion

Sponsor term loan agreements are governed by federal and state guidelines to ensure that the interest rates agreed in the agreement are both legal and reasonable. These agreements are beneficial for both sponsor and borrower for many reasons. This is a legally binding agreement and protects the interests of both parties, if either of them fails to honour the agreement. It helps the sponsor as it legally bounds the borrower to pay the money owed to the sponsor and also allows recourse in case of default on the loan by the borrower. Similarly, it benefits the borrower as it provides them with clear records of the loan details, like interest rate, term of repayment, etc. It allows them to keep a track of their payments.

Regardless of whether the sponsor term loan agreement is between friends, family, or major corporations, it is essential to take time to draft a comprehensive loan agreement to avoid frustration in the future.

Sources

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Is there a need to amend the Abortion Act to provide adequate protection to rights of the father

By

Rachit Garg

-

November 16, 2021

0

abortion — Image source: https://bit.ly/2Z33asM

This article is written by Ishan Arun Mudbidri, from Marathwada Mitra Mandal’s Shankarrao Chavan Law College, Pune. This article talks about the Abortion Act in India and whether there is a need to provide adequate protection to the rights of a father in an abortion.

Table of Contents

Introduction

Abortion in India is a sensitive issue. It was not accepted by society in ancient times. However as times have changed, the practice of abortion is being recognized and accepted in society. In the various legal frameworks enacted in India, the rights of the father in abortion are although mentioned, not rightly protected. This article emphasizes the Abortion Act in India and also examines the provisions for the rights of the father in the process of an abortion.

Abortion in India

Abortion in India is a debate that is going on for a long time. Every person seemed to have conflicting views about abortion. These views were a mix of an individual’s beliefs, and the values imbibed in him/her by the society. These views were changed by the landmark Roe v Wade (1973) case. In this case, it was held by the USA’s Supreme Court that a pregnant woman has the right to choose for abortion, and no external intervention can take this right away from her. Before this judgment, in India abortion was criminalized during the British era under the Indian Penal Code 1860 and the Criminal Procedure Code 1898. In 1964, the Shah Committee was appointed by the Union Government. This Committee recommended that the practice of abortion should be made legal in India. This recommendation was made, keeping in mind the safety and security of pregnant women in India.

The Medical Termination of Pregnancy Act 1971

Considering the recommendations set forth by the Shah Committee, the Medical Termination of Pregnancy Act was enacted in 1971. According to Section 2 sub-section (2) clause (e) of the Act, the term abortion means, a medical termination of pregnancy in India, which is done either by medical abortion or surgical abortion, depending on how many weeks the woman is pregnant. If the woman is pregnant for seven weeks, then she can go through a medical abortion, and if she is pregnant for more than seven weeks and wishes to go for an abortion, she can do so by the method of surgical abortion. The Act consists of eight Sections, all aiming at the welfare of pregnant women. The Act allows women to terminate unwanted pregnancy for a period of up to 20 weeks of pregnancy, according to Section 3 sub-section (2) clause (a). Further, Section 3 sub-section (2) clause (b) of the Act, directs the woman to get a doctor’s approval if the pregnancy is more than 12 weeks. The grounds for termination of pregnancy include the risk of injury to the physical and mental health of the woman if the pregnancy is from a sexual offence like rape, intercourse with a mentally challenged woman, or if there is a substantial risk to the health of the child.

The Medical Termination of Pregnancy Rules were enacted in 1975. These rules stated the criteria and laid down the procedures for approval of an abortion facility, procedures for acquiring consent, and maintaining confidentiality.

After the establishment of this Act, there was an increase in the number of abortions done. However, the abortions center and facilities that were not approved were assumed to be unsafe. Hence there was a need to increase the number of approved abortion facilities.

The Medical Termination of Pregnancy(Amendment) Act, 2021

After legalizing abortion in 1971, the Indian Government was committed to bringing more reforms and policies in the context of abortion. The Parliament passed its first Amendment to the 1971 Abortion Act in 2002. The main objective of this amendment was to set up more approved abortion facilities and to reduce the corruption going on for approval of these facilities. This Amendment decentralized the regulations on all the abortion facilities in India which were approved by the state and district committees.

Further, another important amendment was made to the 1971 Act in the year 2021. According to the Medical Termination of Pregnancy Amendment Bill 2021, the time period within which abortion could be carried out was increased. The new Amendment allowed abortion on the approval of one doctor up to 20 weeks, and in certain circumstances on the approval of two doctors between 20 and 24 weeks. In case of contraceptive failure also, the bill allows women to undergo an abortion. Further, the bill directs the State and Union Territory Governments to set up a medical board. This Board will decide whether the pregnancy can be terminated after 24 weeks due to abnormalities. A few months back, in April, the Indian Parliament passed this act.

The Indian Government’s stand on the legalization of abortion has increased over the last few years. Enacting various amendments to the already existing laws and other new policies shows the commitment of the government in the context of protection of women wanting to undergo an abortion. In this new Amendment, the gestation time period for abortions has been increased to 24 weeks from the previous limit of 20 weeks. This time limit, however, applies to only special categories of pregnant women such as rape victims or incest survivors. This special category of abortion also requires approval from two recognized doctors. Further, there is no upper limit for abortion in case of foetal abnormalities.

Despite all these various changes being enacted in the abortion law, many people are of the view that these changes are not granting women, complete control over their reproductive choices.

Paternal rights in an abortion

In an abortion, the rights of the mother are very noticeable and acknowledged, however, the father’s rights go unnoticed. This is the scenario not just in India, but also around the world. The most common instances of fathers getting involved in the abortion process are when the mother wants the abortion and the father doesn’t, or when the mother wants to abort early and the father wants to delay the process, and vice-versa. In America, the courts have been of the strong view that, the rights of the women and the rights of the men in an abortion, cannot be considered the same, and that the women don’t need permission from their husbands to undergo an abortion. However, these views differ from country to country. In China, a law was enacted which considered the rights of the father and the mother in abortion, to be equal.

Some of the rights of the father that might raise conflicting views

Courts around the world, have considered the rights of the father in an abortion secondary to that of the mother’s right. The following are some of the rights which the father may have in an abortion:

Consent of the father

A father’s consent is not required for abortion in most countries. This is because the mother gets more affected by the pregnancy and she has her right to privacy. According to most of the courts in the world, since the woman carries the pregnancy, the father should not have any opinion of whether to go for abortion or not.

Is it necessary to notify the father about abortion

If the father’s consent is not necessary, then is it necessary to let the father know about the particular abortion? In the case of Planned Parenthood v Casey(1992), the court observed that notifying the husband about the abortion might lay a burden on the pregnant wife. This is because, if the wife has not taken the consent of the husband and notifies him about the abortion, then she might be risking her safety. Therefore, according to the majority of the courts around the world, it is not necessary to notify the husband about the abortion.

Financial obligations on the father who wants to remain childless

If a father wants his wife to abort, but the wife doesn’t want to, is the father liable to financially provide for the needs of the child despite wanting to remain childless?

Paternal rights activists who raise the issue of financial abortions state that the fathers should have the right to choose whether to support the child or remain childless. The right to financial abortion will mean that the wife will have to notify the husband about her pregnancy, and then the father can decide to take responsibility for the child or if he does not want to be a father. As of now, there is no provision anywhere in the world, where financial abortion is a legal right.

Agreements between the partners

There is a provision stating that a husband, who is ready to become a father, can enter into an agreement with the mother of the child, outside the legal jurisdiction. Similarly, if the person does not want to be a father and take responsibility for the child, then he can again enter into an informal agreement with the mother of the child.

Rights of the father in abortion from the Indian perspective

As mentioned above, the father can have rights in abortion but, they are not yet being implemented in many countries. In India also, the mother’s rights in abortion are considered to be primary, and there are no rights that the father gets.

Anil Kumar Malhotra v. Ajay Pashricha

In Anil Kumar Malhotra v Ajay Pashricha (2017), the Supreme Court addressed the issue of whether the husband/father’s consent to abortion has any relevance. In this case, the husband had filed a suit and claimed damages from his wife for terminating her pregnancy, without taking his consent. The man had further argued that the termination of pregnancy done by his wife was illegal as mentioned under the provisions of the Medical Termination of Pregnancy Act 1971. The Supreme Court examined the case and dismissed the appeal filed by the husband.

This judgment was in response to an observation by the Punjab and Haryana High Court in 2011. The Court had observed that Section 3(4) of the Medical Termination of Pregnancy Act 1971, tells us that only the woman who is going to terminate her pregnancy has to give her consent for abortion. The Court further observed that the woman has given her consent for sex with the person, which doesn’t mean that the woman has given her consent to abort the child. The Court made its decision by observing that it is the pregnant woman who carries the pregnancy and hence, the decision to abort should only be her right. The Supreme Court in its 2017 judgment, upheld the observations made by the Punjab and Haryana High Court in 2011.

The way forward for India

The above case law justifies that women have a right to make their own choices when it comes to abortion. In another judgment of the Supreme Court, in the case of Suchita Shrivastava v Chandigarh (2009), it was observed that a woman’s right to make reproductive choices, comes under the ambit of Article 21 of the Constitution, which talks about personal liberty. Hence, from various instances, the courts in India, have proved that pregnant women should decide whether to undergo an abortion or not. To a much greater extent, this seems to be true as, if the husbands get the right to abortion, then it will be a violation of the rights of women. It is women who carry the child inside their stomach and undergo so much pain and struggle for around 9 months. So giving someone else the right to decide for the child seems unfair. Paternal rights activists around the world, argue on how the abortion laws should consider fatherhood in abortion. However, there seems to be no change. The laws in India too have been very stringent and just, only considering a mother’s rights in abortion to be the primary motive. However, in the context of paternal rights, one thing can be done. The fathers should be given the choice of whether to take responsibility for the child or not. This should not be implemented as an amendment but, it can be a choice given to the fathers.

Conclusion

The Indian situation on abortions has improved significantly in the last few decades. Women have eventually been ensured of their rights in abortion. However, there seems to be no mention of fatherhood in an abortion. The fathers’ rights are not considered a primary objective when it comes to abortion. Conflicting views around India and the world might state this as fair, but the Constitution of India guarantees equality as a basic human right, so minor changes in favor of fathers’ rights seem to be a fair bid.

References

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