Article – Amrana Ventures

Supreme Court asks “Bar Council Of India” to reconsider age for prescribing age limit for LLB entry programme

adminuser — Tue, 26 Mar 2019 08:21:44 +0000

In the light of the recent notification by the Bar council of India where it had fixed 22 years of age as the prescribed limit for a candidate to get admission in the 5 year Law Course of BA LLB and 45 years of age limit for admission into LLB course. This was in light of a plea filed by a legal aspirant. The issue seems to simmer as the Bar Council is looking at making the profession as more professional and proficient.

A journey of fellow colleague and a witness: POSH and How I see it?? …..

adminuser — Fri, 07 Dec 2018 05:13:58 +0000

My, journey with law began at a very nascent stage in the life surrounded by lawyers, it created an environment where every situation which came at hand was analyzed and questioned. Then teens came and life was all about freedom and then as usual being a boy life was beep beep no one cares what law is. Aspired to join the military, ended up studying Psychology for a year and then finally joined law school and graduated. Until then Bhanwari Devi was another name in the law books and Vishaka vs Union of India had to be cited in the Indian Penal Code exam and you get 2 extra marks.

The d day came graduation came through, placements were WOW the dream of every aspiring candidate got an interview with PwC , elated to join the best, one had only heard about them in stories and movies and so on. Ideal place to work as we speak the most educated and brilliant lot joins the firm, so was proud of the same. At the same time ethos and values heard about PwC from peers and friend’s was the glamour.

It has been more than over half a decade since I have been with PwC now and it has taught me many things, made me realize why being sensitive is important and what is the reality we living in. In this time I understood what POSH is and how we need to realize as men where we need to draw the line for being cool at workplace with our women colleagues surrounding us.

Insensitivity and first close brush to understand Harassment :

So my journey began with being part of one of the SBU’s. By then I had completed as part of training module my Sexual Harassment training by clicking next next and dedicated the same to what a waste of time, I have come to work here not to do this crap.

I was a fresh associate back then and it was a late evening working on an assignment with a fellow female colleague, chit chatting and there is one random senior, who seemed a nice fellow knowingly, unknowingly he dragged a chair next to this lady without asking/seeking permission to do so and in the personal space of that person just sat. Well now I am a young educated guy from top law school open minded and I said, woah what a cool senior. Then something caught my attention, my colleague was nervous and totally uncomfortable, she was trying to be normal. I thought initially it might be due to work, but the body language suggested something else.

I kept mum as us folks do , why do I care there is nothing wrong, and then with 30 minutes of senior leaving , I ask my colleague you ok isn’t he cool to sit with us . She said I did not like him sitting so close. RED FLAG for me. I realized what she might have been going through psychologically all this while and yet she kept quiet and did not say a word, because just it’s the first month at work and who wants to jeopardize career. As usual Men’s ignorance rules.

Second time alert, Mr ogler strikes :

Second, year into the job and by then life seemed good work was on track started to analyze the culture and comfort sank in. There is a group of us sitting at the break area at an office location in the western zone, discussing how to close a presentation. Then something caught our attention

We, menfolk and Indian’s in particular are callous and chilled in general “Kya Kahenge Log” keeps us in checks and balances. It is the law of land, we become shy sound minded and practical when Kya kahenge Log is implemented.

Nonetheless we are serial ogler’s and of the order that we do not leave the corner of the eye alone either when something happens around us.

This extra super hero trait gets super bolstered if someone from another gender walks by or is at workplace in proximity. There is a colleague going about her work, and a couple of associate’s from across the bay were standing and radiating , Ogling straight at her whilst standing and passing by. Then the magic trick found an excuse on some pretext and in a professional manner dragged a chair on a spot in the bay and sat.

We sitting at cafeteria joked what the hell, maybe we are reading between the lines, it is nothing and we looked away, 10 minutes down the line the female colleague changed her bay and sat somewhere else.

This was something which made me uneasy and I started believing that harassment has no single definition, it exists and around me it is prevalent. Then when the discussion happened with other colleagues, was given a advice, “Bhai leave it you are thinking too much” Kam pe dhyaan. This time though I went through the policy online and read, alas I was correct this was harassment.

Third time , the party shocker strike’s :

Third year into work, maturity creeped in, more settled in work environment, belief is still high on ethos and values. Then came the d day, a party is organized for new joiner’s and promotions were declared so both occasions combined. Everyone is happy the party is at a superb location decent crowd, niche alcohol. First party for me so high expectations, everyone was getting drunk chilling. Then I see a group of female colleague’s dancing and we of this generation are open minded people so as I speak everyone is welcome to join. The dance was on and suddenly amongst the group as we watch, a Jiver of vulgar dance makes an entry into the group. Everyone is laughing at first until he makes it a dance off and tries to dance with a random female colleague who at first was chilled out and then ignores and ignores as Boney M cranked up his dance. In the end she and her friends left the floor.

It was yet again that I had witnessed and not reported, and I asked myself, can I imagine myself stuck in such a situation. Just because I am a guy it is so easy, what if it was someone I knew, or my sister. Then the belief “uske saath nai hoga”, I will do the needful etc etc.

This caused a lot of unrest to me and I became sure Harassment which I had heard off has no caste, creed, education, family background it exists. That night what made me question was my own demeanor in office, as to whether knowingly/unknowingly or otherwise I hope I am not doing the same.

The Bhanwari devi case on marginal levels came across to me as a simmering point, she was subjugated to such type of instance’s, but because no one was sensitive, she had to face such consequences. We as males label ourselves that we are not like that, but in some or the other way we do have ignorance is bliss which causes such instances around us at workplace.

Over a period of time as I matured with work and the organization, these instances became more frequent or maybe I became sensitized. I started noticing similar situations on marginal levels happening every now and then. Some of the pointers which came to my understanding were:

Leaning over female colleagues
Keeping a hand on shoulders
Insist on shaking hands
Ogling from anywhere
Using double meaning jokes without realizing women are around

I am not saying that all of us have done it knowingly, that is dangerous , but what is even dangerous we unknowingly do so and the ego comes where self-denial is the savior. We must understand and respect the other gender a sense of responsibility in such an environment towards our female associates and colleagues is a must.

Three words can summarize what I felt and I regret “Should have voiced my concern” may be my female counterparts would have felt that it is not a blind eye situation. As it is the Indian way of living is such societal pressures condition, women to believe “aise he hoga aap bacho”.

As, I matured more and became sensitized about this issue , from that day onwards I have always endeavored and done my bit and attempted to do so… my journey with the firm has been exemplary and I have had most amazing people, but such instances do exist, and it is the silence that leads to a storm. Be the vociferous one lets help each other out, so the jiver/extra friendly and the ogler leave’s our workplace….

Prevention of Sexual Harassment

adminuser — Sun, 29 Apr 2018 15:47:18 +0000

Background:
Onset of 21^st century has seen a surge in the overall globalization of endemic proportions in turn a steep growth at all fronts whether economic or otherwise.

What has been the lauding factor is sudden rise in the emancipation of women and total surge in representation at all fronts. India has also seen in recent years a rise in number of working women and overall rise in education for women.

Statistical data collated by “catalyst” an organization working on data analysis of women representation at work/education and as a labour force has reflected figures where it was recorded:

Education Statistics:

8% of all enrolled undergraduate students in India are women
7% of all enrolled PhD students are women.

This is a huge leap and a welcome step for Indian society dissipated by language cultural caste based backgrounds barriers.

Howsoever to the contrary what is impending and shocking is the certain decline in women representation at workplace and working women.

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Working Women Statistics:

In a study/ research carried out by ASSOCHAM – Thought Arbitrage Research and Huffington Post

The female workforce rate in India has fallen significantly by 10 percent during the last decade,
The Stats show that in relation to every 54.6 employed men, there are just about 14.7 working women in 2016 in Urban Areas.

This decline is attributable to a number of reasons family, social, economic reasons etc., howsoever, the most pertinent of all causes is the rise of Sexual Harassment across workplaces. The fear of lack of adequate measures at workplace, government mechanisms, and cumbersome judicial processes are equally contributing factors.

Sexual harassment thus at workplace is common growing concern. It has transformed into a widespread problem for the western countries or third world nations. The rampant, atrocities against women is common everywhere.

It is a crime directed towards women, who are considered to be the most vulnerable section of the society.

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What is Sexual Harassment?

Sexual Harassment is behavior. It is a dysfunctional trait exhibited by a person towards another person, whether a man or a woman. The large proportion of it being howsoever the women. Sexual harassment thus can be summed as all feasible forms of mental and physical violence which in turn violates her fundamental rights and abilities to perform her duties

Oxford Dictionary definition: “harassment (typically of a woman) in a workplace, or other professional or social situation, involving the making of unwanted sexual advances or obscene remarks”

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Sexual Harassment cannot be?

“Labelled as it is just a woman’s thing”
A passing short lived fad.
A Passing joke or a jocular reference
Something to be completely shrugged or be ignored.
A flaming cause for paranoia and fear

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Evolution of Indian law on Sexual Harassment:

The Indian law has been very bleak on the subject of the sexual harassment, it has taken Indian legal system and judiciary many a years and numerous instances and incidents to form a framework to protect the sexual harassment.

Until 1997, where in post the Vishaka Guidelines came into existence the only recourse in Indian law was under Section 509 and Section 354 of Indian Penal Code 1860. There were no specific law to tackle the issue at helm, though Indian government was embroiling the need for same.

However, 1997 saw the advent of law and laying down of certain concrete guidelines. The famous case of “Bhanwari Devi” or otherwise known as Vishaka Case is inferred as the foundation stone for the law on sexual harassment In India.

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Case Law: Vishaka vs. State of Rajasthan

Facts of Case:

Bhanwari Devi was government employee of State Government of Rajasthan and was also working as a worker for the Women Development Programme.

Bhanwari Devi in her personal capacity attempted to prevent a child from getting married. For her act of trying to stop the child marriage, she was raped repeatedly by feudal landlords of a particular community who vouched to teach her a lesson.

She approached the court of law but justice was not meted she did not due to many a circumstances and influential approach get justice from Rajasthan High Court and the rapists were allowed to go free. Following the course of events the women’s NGO called Vishaka took up the matter and further filed a public interest litigation in the Supreme Court of India.

Hon’ble Supreme Court of India took Suo moto cognizance of the fact and as the outcome of the case promulgated the Vishaka Guidelines so as to prevent and protect women from Sexual Harassment.

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VISHAKA GUIDELINES POST 1997:

The Hon’ble Supreme court at the outcome of Vishaka case laid down certain guidelines and observed that :

“It is imperative and need of hour is expedient for all employers/ responsible persons or institutions to observe certain guidelines to ensure the prevention of sexual harassment of women at work and otherwise” Duties of the employer or other responsible persons in work places and other institutions:

Express prohibition of sexual harassment as defined above at the work place should be notified, published and circulated in appropriate ways.
The rules of government and public sector bodies relating to conduct and discipline should include rules prohibiting sexual harassment and provide for appropriate penalties in such rules against the offender.
As regards private employers, steps should be taken to include the aforesaid prohibitions in the standing orders under the industrial employment (standing orders) act, 1946.
Appropriate work conditions should be provided in respect of work, leisure, health and hygiene to further ensure that there is no hostile environment towards women at work places and no employee woman should have reasonable grounds to believe that she is disadvantaged in connection with her employment

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Criminal Proceedings:

Where such conduct amounts to a specific offence under the IPC or under any other law, the employer shall initiate appropriate action in accordance with law by making complaint with the appropriate authority. In particular, it should ensure that victims or witnesses are not victimized or discriminated against while dealing with complaints of sexual harassment.

Disciplinary Action:

Where such conduct amounts to misconduct in employment as defined by the relevant service rules, appropriate disciplinary action should be initiated by the employer in accordance with those rules.

Complaint Mechanism:

Whether or not such conduct constitutes an offence under law or a breach of the service rules, and appropriate complaint mechanism should be created in the employer’s organization for redress of the complaint made by the victim. Such complaint mechanism should ensure time bound treatment of complaints.

Setting up of Internal Complaints Committee:

The complaint mechanism, referred to above, should be adequate to provide, where necessary, a complaints committee, a special counselor or other support service, including the maintenance of confidentiality.

The complaints committee should be headed by a woman and not less than half of its member should be women. Further, to prevent the possibility of any undue pressure or influence from senior levels, such complaints committee should involve a third party, either NGO or other body who is familiar with the issue of sexual harassment.

The complaint committee must make an annual report to the government department concerned of the complaints and action taken by them.

The employers and person in charge will also report on the compliance with the aforesaid guidelines including on the reports of the complaints committee to the government department.

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Law Post Vishaka: “Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act in 2013”

“Definition as per Law”
As per Section 2(n) of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act in 2013,
definition of Sexual Harassment has been rendered as “ any or more of the following unwelcome acts of behavior namely” :

Physical contact and advances; or
A demand or request for sexual favour; or
Sexually colored remarks; or
Showing pornography; or
Other offensive or derogatory pictures, cartoons; or
Any other unwelcome physical, verbal or non-verbal conduct of sexual nature.

In simple terms it is the violation of a woman’s right to equality and dignity.
As per the act , Following acts when in relation to behavior of Sexual Harassment may amount to sexual harassment

(i) implied or explicit promise of preferential treatment in her employment; or
(ii) implied or explicit threat of detrimental treatment in her employment: or
(iii) implied or explicit threat about her present or future employment status; or
(iv) interference with her work or creating an intimidating or offensive or hostile work environment for her; or
(v) Humiliating treatment likely to affect her health or safety

Sexual Harassment and Constitution of India:
The constitution of India which upholds and is the forbearer of liberty freedom and law for its citizens, sexual harassment is:
“A gross violation of Article 14 which speaks about right to equality, Article 15 which prohibits discrimination and Article 21 of constitution of India which upholds the right to live with dignity”.

ROLE OF INDIAN JUDICIARY WITH SPECIAL REFERENCE TO THE GLOBAL IP REGIME

adminuser — Fri, 04 Oct 2013 15:55:52 +0000

ABSTRACT:
“Intellectual Property Rights” (IPR) is an extension of the Common Law concept of ownership. Ideas, Concepts, Expression, Intellect, Creativity, the intangible forms of human capabilities are treated as tangible property capable of being owned by their creators in the same manner as any tangible object is and, therefore, like any other property needs to be protected by law. India as a signatory to the GATT (General Agreement on Tariffs and Trade) is under an obligation to accord protection to Intellectual Property Rights. At present, we have various laws in India governing IPR such as The Patents Act, 1970, The Copyrights Act, 1957, etc. in addition to global laws such as The Trade Related Aspects of Intellectual Property Rights (TRIPS) which provide for the protection of Intellectual Property as well as prescribing punishments for their infringement. The Indian Judiciary has played a proactive and activist role in preserving and upholding Intellectual Property Rights as has been evidenced by its decisions in cases such as N.R. Dongre & Others v.Whirlpool Corporation & Another (1996) 5 SCC 714, Apple Computer Inc. v. Apple Leasing & Industries (1993) 18 IPLR 63 [in IA No.7678 of 1989 in Suit No.2751 of 1989], etc.

Through this essay, the authors have tried to explain the concept of Intellectual Property Rights, the global regime governing IPR vis-à-vis the Indian Law and the stance taken by the Indian Courts for the enforcement and protection of IPR and promoting India as a global destination for Foreign Investment by safeguarding Intellectual Property Rights.

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INTRODUCTION:
“Intellectual Property Rights” (IPR) is an extension of the Common Law concept of ownership. Ideas, Concepts, Expression, Intellect, Creativity, the intangible forms of human capabilities are treated as tangible property capable of being owned by their creators in the same manner as any tangible object is and, therefore, like any other property needs to be protected by law. Lately due to globalization, easy accessibility to information, technology, development of innovative models of business and shrinking of trade barriers by formation of groups and associations of countries like EU, SAARC, NAFTA, G-8 etc. Intellectual Property has acquired a trans-boundary effect making it increasingly vulnerable to infringement. Intellectual Property (IP) Laws are extremely important for the scientific development of a country. Strong Intellectual Property legislation ensures progress in varied fields and result in the growth of a country’s knowledge bank. It is of utmost importance that strong IP laws must be ably supported by an equally strong enforcement mechanism. A strong IPR regime helps attract new investment and allows innovators to develop new technologies. It is, therefore imperative that any law providing for the protection of Intellectual Property also provides strategic remedies for prevention of its infringement through effective enforcement measures.

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INTERNATIONAL AGREEMENTS RELATING TO INTELLECTUAL PROPERTY:

World Intellectual Property Organization (WIPO): WIPO is a specialized agency of the United Nations. It is dedicated to developing a balanced and accessible international Intellectual Property(IP) system, which rewards creativity, stimulates innovation and contributes to economic development while safeguarding the public interest. WIPO is responsible for promoting creative intellectual activity and for facilitating the transfer of technology related to industrial property to the developing countries in order to accelerate economic, social and cultural development, subject to the competence and responsibilities of the United Nations and its organs.
Trade Related Aspects of Intellectual Property Rights(TRIPS): The Preamble of TRIPS lays down that the agreement desires to reduce distortions and impediments to international trade by taking into account the need to promote effective and adequate protection of Intellectual Property Rights. Part III of TRIPS provides for the enforcement of IP rights. Members shall ensure that enforcement procedures are available under their law so as to permit effective action against any act of infringement of intellectual property rights covered by this Agreement, including expeditious remedies to prevent infringements and remedies which constitute a deterrent to further infringements. This Part provides for remedies in the form of Injunctions and Damages.

[1] IPR- Enforcement Law in India- Ranjan Kumar Misra.
[2] http://www.wipo.int/about-wipo/en/what_is_wipo.html
[3] http://en.wikipedia.org/wiki/World_Intellectual_Property_Organization

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PROTECTION OF IPR IN INDIA:
India is a signatory to GATT (General Agreement on Tariffs and Trade) and TRIPS (Trade Related Aspects on Intellectual Property Rights). This means that it has to follow the rules set by WTO (World Trade Organization) and recourse can be sought in international forums for not implementing the agreement. In India there are various Laws which provide protection against infringement of IP. The Laws are as follows:

The Patents Act, 1970: The reliefs which a court may grant in any suit for infringement includes an injunction (subject to such terms, if any, as the court thinks fit) and, at the option of the plaintiff, either damages or an account of profits. The Court may also order that the goods which are found to be infringing and materials and implement, the predominant use of which is in the creation of infringing goods shall be seized, forfeited or destroyed without payment of any compensation.

The Trademarks Act, 1999: Any person who falsifies any Trademark; falsely applies to goods or services any Trademark; makes, disposes of, or has in his possession, any die, block, machine, plate or other instrument for the purpose of falsifying or of being used for falsifying, a trade mark; or applies any false trade description to goods or services; or applies to any goods to which an indication of the country or place in which they were made or produced or the name and address of the manufacturer or person for whom the goods are manufactured is required to be applied, a false indication of such country, place, name or address; or tampers with, alters or effaces an indication of origin which has been applied to any goods to which it is required shall, unless he proves that he acted, without intent to defraud, be punishable with imprisonment for a term which shall not be less than six months but which may extend to three years and with fine which shall not be less than fifty thousand rupees but which may extend to two lakh rupees.

[4] http://www.wto.org/english/tratop_e/trips_e/t_agm1_e.htm
[5] Article 41, TRIPS.
[6] Article 44, TRIPS.
[7] Article 45, TRIPS.
[8] Section 108, The Patents Act, 1970.

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The Copyright Act, 1957: Any person who knowingly infringes or abets the infringement of the Copyright in a work, or any other right conferred shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to three years and with fine which shall not be less than fifty thousand rupees but which may extend to two lakh rupees. Whoever having already been convicted of an offence is again convicted of any such offence shall be punishable for the second and for every subsequent offence, with imprisonment for a term which shall not be less than one year but which may extend to three years and with fine which shall not be less than one lakh rupees but which may extend to two lakh rupees. Any person who knowingly makes use on a computer of an infringing copy of a computer programme shall be punishable with imprisonment for a term which shall not be less than seven days but which may extend to three years and with fine which shall not be less than fifty thousand rupees but which may extend to two lakh rupees. Any police officer, not below the rank of a Sub-inspector, may, if he is satisfied that an offence in respect of the infringement of Copyright in any work has been, is being, or is likely to be, committed, seize without warrant, all copies of the work, and all plates used for the purpose of making infringing copies of the work, wherever found, and all copies and plates so seized shall, as soon as practicable, be produced before a Magistrate. Any person who knowingly makes, or has in his possession, any plate for the purpose of making infringing copies of any work in which copyright subsists shall be punishable with imprisonment which may extend to two years and shall also be liable to fine. The Court while trying any offence under this Act may order that all copies of the work or all plates in the possession of the alleged offender, which appear to it to be infringing copies, or plates for the purpose of making infringing copies, be delivered up to the owner of the Copyright.

[9] Section 103, The Trademarks Act, 1999.
[10] Section 63, The Copyrights Act, 1957.
[11] Section 63 A, The Copyrights Act, 1957.
[12] Section 63 B, The Copyrights Act, 1957.
[13] Section 64 (1), The Copyrights Act, 1957.
[14] Section 65, The Copyrights Act, 1957.
[15] Section 66, The Copyrights Act, 1957.

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Geographical Indications of Goods (Registration and Protection) Act, 1999: Any person who falsifies any Geographical Indication; or falsely applies to goods any Geographical Indication; or makes, disposes of, or has in his possession, any die, block, machine, plate or other instrument for the purpose of falsifying or of being used for falsifying, a Geographical Indication; or applies to any goods to which an indication of the country or place in which they were made or produced or the name and the address of the manufacturer or person for whom the goods are manufactured is required to be applied, a false indication of such country, place, name or address; or tampers with, alters or effaces an indication of origin shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to three years and with fine which shall not be less than fifty thousand rupees but which may extend to two lakhs rupees. The same punishment is prescribed for any person who sells, lets for hire or exposes for sale, or hires or has in his possession for sale, goods or things to which any false Geographical Indication is applied. On any subsequent offence the punishment shall be imprisonment for a term which shall not be less than one year but which may extend to three years and with fine which shall not be less than one lakh rupees but which may extend to two lakh rupees.

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Semiconductor Integrated Circuits Layout Design Act, 2000: Any person who infringes a layout design shall be punishable with imprisonment for a term which may extend to three years or with fine which shall not be less than fifty thousand rupees but which may extend to ten lakh rupees. If any person falsely represents that any layout design is registered when in fact it is not so, he shall be punishable with imprisonment for a term which may extend to six months or with fine which may extend to fifty thousand rupees. In case of infringing layout designs the Court has the power to order seizure of the same.[16] Section 39, The Geographical Indications of Goods (Registration and Protection) Act, 1999.[17] Section 40, The Geographical Indications of Goods (Registration and Protection) Act, 1999.[18] Section 41, The Geographical Indications of Goods (Registration and Protection) Act, 1999.[19] Section 56, The Semiconductor Integrated Circuits Layout Design Act, 2000.[20] Section 57, The Semiconductor Integrated Circuits Layout Design Act, 2000.[21] Section 60, The Semiconductor Integrated Circuits Layout Design Act, 2000.

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ROLE OF THE INDIAN JUDICIARY IN PROTECTION OF IPR IN THE GLOBAL IP REGIME:
The Courts in India have always strived for the protection of IPR and the various decisions of the Supreme Court and the High Courts in this regard bear testimony to this fact.
In England, in Budweiser’s case the English Courts declined to protect trans-border reputation by striking a distinction between reputation and goodwill and holding that for a passing off action it was necessary to have a protectable goodwill; which meant doing of business in the open market in England. In the said case, Budweiser being an American company was unable to restrain a Czeckoslovakian company from using the mark Budweiser because its products were not sold in the open market in England.
The Indian Courts disagreed with the Budweiser decision of English Court. In Apple Computer Inc. v. Apple Leasing & Industries, the Delhi High Court held as under:-
“I am quite unable to treat these sporadic and occasional sales as constituting in any real sense the carrying on by the plaintiffs of a business in this country”. Speaking for myself, I have difficulty in asserting that sale of 5 million cans of beer is “sporadic sale”. I would say that sale of that magnitude every year would be sufficient to establish a reputation.”
The Indian Supreme Court in N.R. Dongre & Others v.Whirlpool Corporation & Another confirmed the concept of trans border reputation which is now very much a part of the Indian law. The result is that if there is a foreign company whose Trademark is known in India through a spill over advertising, tourists travel etc, then it can protect its mark even though it is neither commercially used in India nor registered here.
In another case Diamler Benz v. Hybo Hindustan, the Delhi High Court has accorded protection to Trademarks of completely dissimilar goods which extended beyond the proprietors’ goods because of trans-border reputation and partly because of passionate reaction to dishonest trading. In this case, protection was extended to totally dissimilar goods when the sale of under wears under the BENZ trademark (known for automobile) was restrained.

[22] (1993) 18 IPLR 63 [in IA No.7678 of 1989 in Suit No.2751 of 1989].
[23] (1996) 5 SCC 714.
[24] AIR 1994 Delhi 239.

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Yahoo! Inc. v. Akash Arora was India’s first domain name case where the Indian Courts granted protection to domain names or Trademarks on the internet despite the lack of specific legislation in this regard on the principles of infringing marks and passing off. Thereafter, the Courts recognized the torts of meta tagging, hyper linking, framing, spamming and phishing in a large number of cases forming a mosaic of decisions to protect trademarks on the internet.
In Gramophone Co. of India v. Birendra Bahadur Pande & Others wherein the conflict between the national and international laws was discussed the Apex Court came to the conclusion that India’s bilateral treaty should prevail in the form of Municipal Law. The said judgment discussed in detail the provisions of Customs Act as well as the provisions of the international convention pertaining to the Copyright. The Court came to the conclusion that the word ‘import’ in Sections 51 and 53 of the Copyright Act means ‘bringing’ into India from outside India and that it is not limited to importation for commerce only, but includes importation for transit across the country. Therefore, the Supreme Court of India in the present case also enforced Intellectual Property Rights on trans-national basis by widening the definition of import by not merely confining it from import of commerce but also import of transit.
The Courts in India from granting simple ex parte injunction have moved to more complex remedies like grant of Mareva Injunctions (a Court order which freezes assets so that a defendant to an action cannot dissipate their assets from beyond the jurisdiction of a Court so as to frustrate a judgment), Anti-Suit Injunctions (issued by a Court that prevents an opposing party from commencing or continuing a proceeding in another jurisdiction or forum), Anton Piller Orders (a Court order that provides the right to search premises and seize evidence without prior warning which prevents destruction of relevant evidence, particularly in cases of alleged Trademark, Copyright or Patent infringements) and John Doe Orders (used as a placeholder name in a legal action, case or discussion for a male party, whose true identity is unknown or must be withheld for legal reasons).

[25] (1999) FSR 931 (Delhi).
[26] (1984) 2 SCC 534.

In Taj Television v. Rajan Mandal where the Intellectual Property was the broadcast reproduction rights of the Soccer World Cup, 2002. The Delhi High Court granted a John Doe Order as a result of which the Local Commissioner appointed by the Court went, searched and seized equipments at various known and unknown cable operators’ control rooms and during the course of that month, some 3500 licenses were signed up. The action was an immediate success in curbing what might have been a total destruction of the plaintiff’s Intellectual Property Rights.
In Modi Entertainment Network & Another v. W.S.G. Cricket Pvt. Ltd., The Supreme Court granted an Anti-Suit Injunction. The Court observed that “The Courts in India like the Courts in England are Courts of both law and equity. The principles governing grant of Injunction – an equitable relief – by a Court will also govern grant of Anti-Suit Injunction which is but a species of Injunction. It is a common ground that the Courts in India have power to issue anti-suit injunction to a party over whom it has personal jurisdiction in an appropriate case. This is because Courts of equity exercise jurisdiction in personam. However, having regard to the rule of comity, this power will be exercised sparingly because such an injunction though directed against a person, in effect causes interference in the exercise of jurisdiction by another Court.”
The Indian Courts are also granting punitive and exemplary damages apart from compensatory damages in order to shift the focus from an overburdened Criminal Justice Delivery System to a Civil System. The Indian Courts have granted punitive and exemplary damages in a large number of cases.
The Delhi High Court in Amar Nath Sehgal v. Union of India granted huge damages against the Government of India for IP Rights violations.
The Courts have realized that not all defendants can afford to pay damages and have adopted a softer and innovative approach for some of the defendants. Thus, the Courts have granted a variety of unusual orders such as the spittoon order granted in Baba Zarda’s case where the defendant, a Chewing Tobacco Manufacturer, had to install 150 spittoons in Osmania Hospital in Hyderabad. In the case of infringement of Microsoft Softwares the defendants had to work with the plaintiffs in anti counterfeiting campaigns including participation in seminars a view to advocating the correct and legal use of software. In the case of Ralph Lauren (Polo), the Defendant had to undergo a community service of 30 days in an old age home and his partner in an orphanage and thereafter provide a report of their having performed the service.

[27] 2003 FSR (22) 407.
[28] AIR 2003 SC 1177.
[29] 2005(30) PTC 258 (Del).

In Hilton International Company v. Mr. K.V. Kumar, not only did the Hon’ble Court permanently restrain the defendants from using the Trademark HILTEN in respect of their Hotel business but also granted damages worth US $ 58,975 (Rs. 23.59 Lakh) to the plaintiffs.

In Cartier v. Cartier Enterprises, recognizing the well established rights of the Trademark owner, the Court imposed US $ 44,500 (INR 17.80 Lakh) plus 12 percent interest as damages on the defendants for infringing the trademark rights of the rights holder.

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CONCLUSION:
In order to reinforce and reiterate the commitment of India towards the global regime for protection of Intellectual Property Rights, the Courts in India have taken a proactive stance which is highlighted in the Judgments rendered by them. These decisions showcase India in positive light as also India’s resolve to abide by its global commitments under TRIPS and WIPO. The Courts by these decisions have allayed the apprehension which some foreign investors might have regarding IP protection and have promoted India as a safe and welcome destination for Foreign Investment.

[30] Suit No. 2015 of 2003.
[31] CS (OS) No. 1208 of 2003.

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BIBLIOGRAPHY:
ARTICLES:

IPR-Enforcement Law in India – RANJAN KUMAR MISRA.
Role of Judiciary in IPR Development and Adjudication- Justice Rajesh Tandon
Commission on Intellectual Property Rights: Developing Countries and International Intellectual Property Standard-Setting – Peter Drahos.
Transnational Enforcement of Intellectual Property Rights- Indian Judiciary- Indian Cases and Suggestions for further strengthening the Intellectual Property Rights.
Role of Judiciary in the Effective Protection of Intellectual Property Right: Justice R.K. Abichandani.

BOOKS:

Intellectual Property- W.R.Comish.
Cases and Materials on Intellectual Property- W.R.Comish.

CASE LAWS:

Apple Computer Inc. v. Apple Leasing & Industries: (1993) 18 IPLR 63 [in IA No.7678 of 1989 in Suit No.2751 of 1989].
N.R. Dongre & Others v.Whirlpool Corporation & Another: (1996) 5 SCC 714
Diamler Benz v. Hybo Hindustan: AIR 1994 Delhi 239.
Yahoo! Inc. v. Akash Arora: (1999) FSR 931 (Delhi).
Gramophone Co. of India v. Birendra Bahadur Pande & Others: (1984) 2 SCC 534.
Taj Television v. Rajan Mandal: 2003 FSR (22) 407.
Modi Entertainment Network & Another v. W.S.G. Cricket Pvt. Ltd.: AIR 2003 SC 1177.
Amar Nath Sehgal v. Union of India: 2005(30) PTC 258 (Del).
Hilton International Company v. Mr. K.V. Kumar: Suit No. 2015 of 2003.
Cartier v. Cartier Enterprises: CS (OS) No. 1208 of 2003.

WEBSITES:

INDIAN ACTS:

The Patents Act, 1970.
The Trademarks Act, 1999.
The Copyright Act, 1957.
Geographical Indications of Goods (Registration and Protection) Act, 1999.
Semiconductor Integrated Circuits Layout Design Act, 2000.

INTERNATIONAL LAWS AND AGREEMENTS:

World Intellectual Property Organization (WIPO).
Trade Related Aspects of Intellectual Property Rights (TRIPS).

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