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The Competition Commission of India (CCI) has issued an order dated 31.01.2018 against Google LLC and Google India Private Limited for abuse of its dominant position under Section 4 of the Competition Act 2002 (‘the Act’). In the year 2012, two companies, namely, Consim Info Private Limited (now, Matrimony.com Limited) and Consumer Unity & Trust Society (CUTS), (‘the Informants’) had filed two cases No. 07 and 30 of 2012 against Google Inc. (now, Google LLC) and Google India Private Limited, (‘Google’) alleging contravention of Section 4 of the Act.

The Informants had alleged that while conducting the core business of search and advertising, Google has been manipulating the search results and favoring its own services and partners, such as Google Video, YouTube, Google Maps, Google News, etc. Thus, pages in the search results do not appear according to their relevance, popularity, etc. For instance, when we search for a song in the Google Website, we primarily receive links to the videos of that song from Google Video or YouTube, etc. It was further averred that Google is widely recognized as enjoying a dominant status in the search advertisement market because of its market share, size, resources, reputation etc. Therefore, such practices of search bias, search manipulation, denial of access to competing search engines, creation of entry barriers etc amount to abuse of dominant position.

The CCI had directed the Director General (‘the DG’) appointed under the Act to investigate into the matter in 2012. Considering the Investigation Report submitted by the DG in 2015, the CCI made the following analysis:

  1. That online search falls within the ambit of Section 4 of the Act:

Online search engines like Google are a platform connecting advertiser/businesses, etc on one side and users/consumers on the other side. When a search request is made by a user, the platform seeks certain information from the users such as their IP address, device information, location, etc. Such huge volumes of data are used by the search platforms to attract advertisers, target relevant ads and conduct their search business. The platform also earns revenue when a user clicks on any ad displayed by the advertiser through the platform.

  1. Dominant position:

According to the explanation (a) to Section 4 of the Act, “dominant position” means a position of strength, enjoyed by an enterprise, in the relevant market, in India, which enables it to— (i) operate independently of competitive forces prevailing in the relevant market; or (ii) affect its competitors or consumers or the relevant market in its favor.

Based on the DG Report, the CCI confirmed that Google is a dominant enterprise in both the relevant markets of Online General Web Search Services and Online Search Advertising in India (‘Markets’) based on factors like its size and resources, economic power and commercial advantages, entry barriers, etc.

It further noted that the market share of Google and its competitors show that none of the competitors of Google has so far been able to match Google’s market strength in either Market. The market share, consumers’ and advertisers’ dependence on Google, continuous innovation, etc indicate that the users and businesses are unlikely to switch to a competing search engine. Also, Google’s insurmountable scale advantage and high barriers of entry (as only online general web search market can compete in the search advertising market), etc effectively restrict entry into the search advertising market. Thus, all such market conditions clearly indicate Google’s dominance in the Markets.

  1. Abuse of Dominant Position:

i) The CCI held that Google was wrong and unfair in displaying the search results prior to 2010 in pre-determined/fixed positions instead of ranking them in order of relevance.

ii) The CCI further held that when a user clicks on ‘more results’, the link leads to Google’s specialized services and not any other vertical search service. For instance, the most relevant search result for maps was Google Maps, for flights it was Google Flights, and such others.

Moreover, by doing so Google could collect large volumes of user data but the other competing vertical search pages, which may be equally efficient, could not reap the same benefit, thereby deteriorating their ability to further innovate on their products and sustain and survive in the market.

Further, such practices of search bias cause harm to its competitors, as it adversely affects the competitive landscape in the Markets, as well as to its users, as they may not receive the most relevant results.

iii) Google also prevented partners with whom it entered into search agreements from implementing on their websites any search services which are the same or substantially similar to Google’s search service. This online search exclusivity condition was held to be unfair as it restricts the choice of the partners and denies its competitors access to the search business. Google also had agreements with publishers of ads which restricted the publishers from posting ads in any other search engine which were same as or substantially similar to the ads posted in Google. The other restrictive conditions imposed on such publishers and partners included prohibition from using competing services, or restrictions relating to the manner of placement of ads of competitors, etc.

The aforesaid restrictive conditions imposed by Google on such publishers and partners prevented the competing service providers from achieving necessary scale resulting in creation of entry barriers for them.

Thus the CCI held that the aforesaid conduct of extending and preserving Google’s dominance in the Markets has been held to be violative of Section 4 of the Act. The CCI has, therefore, imposed a penalty of Rs. 135.86 Crores on Google, which is to be deposited within 60 days of the receipt of this Order.

 

Harini Daliparthy

Senior Legal Associate

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The Finance Minister of India, Mr. Arun Jaitley, has laid down the Union Budget 2018-19 on 01.02.2018 in the Parliament of India. The Budget has made an allocation of Rs. 5.97 lakh crore for infrastructure sector including roads, railways, airports, ports and inland waterways (Sector). The Government of India considers this Sector as the growth driver of the economy. Thus, the Budget allocation for this Sector has been increased in 2018-19 (Rs. 5.97 lakh crore) against an estimated expenditure of Rs 4.94 lakh crore in 2017-18.

The Budget has focused on development of the following infrastructure projects:

  • Development of existing infrastructure: The Budgetary allocation is more focused on developing the existing infrastructure projects, both urban and rural, thereby, providing maximum livelihood and long term employment opportunities through education and skill development and has, therefore, refrained from making any new project announcements.
  • Development of rural infrastructure: This includes development of rural roads, rural houses, household electric connections, animal husbandry sector, irrigation, rural electrification, potable drinking water and access to toilets etc.
  • Creation of infrastructure for seaplanes: For the purpose of boosting regional connectivity, the Government has planned to introduce seaplanes and a passenger-friendly toll policy. It has also planned to encourage investments in seaplane services for tourism and emergency medicare purposes.
  • Facilitating air travel: Under the Government’s Regional Connectivity Scheme that has already connected 16 new airports and aims to connect 56 unserved airports and 31 helipads, the Government proposes that at least half the seats on every flight should have a fare cap of Rs. 2,500 per seat per hour of flying.
  • Railway infrastructure: The Government has pegged at Rs. 1,48,528 crore for 2018-19 to enhance railways’ carrying capacity and to strengthen the railway network. It has aimed to redevelop 600 major railway stations, provide WiFi and CCTV at railway stations, etc.
  • Connectivity in border areas: The Government has aimed to enhance the connectivity in border areas by construction of tunnel under the Sela Pass in Arunachal Pradesh.
  • Development of industrial corridors: This includes development of roads and services, administrative and business centre, water treatment plant, common effluent treatment plant and sewage treatment plant in Dholera Special Investment Region (Gujarat), Shendra Bidkin Industrial Area (Maharashtra), Dighi Port Industrial Area (Maharashtra), Multi Modal Logistics Hub, Nangal Chaudhury (Haryana), Vikram Udyogpuri (in Ujjain). The Government expects to allot plots measuring 350 hectares to industrial units by March 2019, as this may open avenues for development of greenfield industrial area.
  • Execution of Bharatmala Pariyojana and Sagarmala Projects: The Government had approved this roads and highways Project during 2017-18 for providing seamless connectivity to interior and backward areas of India and to develop about 35,000 km in Phase-I at an estimated cost of Rs. 5,35,000 crore. While the total investment for Bharatmala is estimated at Rs. 10 trillion, but an additional Rs. 8 trillion of investments will be needed for executing the Sagarmala Project, focused on development of ports, coastal economic zones, etc, until 2035.
  • Tourism: The Government has proposed to develop ten prominent tourist sites into iconic tourism destinations
  • Enhancement of digital connectivity: The Budget has allocated Rs 10,000-crore for creation and augmentation of telecom infrastructure and to roll out 5 lakh WiFi hotspots to boost broadband connectivity. It has further stated that under the BharatNet initiative, around 2.5 lakh villages already have optical fibre connectivity and that the Government aims to expand it to remaining 1.5 lakh villages.

The Government has proposed to raise and arrange for finances for execution and completion of the infrastructure projects in the following manner:

  1. Creation of Special Purpose Vehicles and use of innovative monetising structures like Toll, Operate and Transfer (TOT), Infrastructure Investment Trust (InvIT), etc by National Highways Authority of India (NHAI). The Government has also permitted NHAI and Metro to raise bonds from the market.
  2. Development of monetizing vehicles like, InvIT and Real Estate Investment Trust by the Government and market regulators.
  • Proposal to make necessary amendments to the Indian Stamp Act 1899 with regard to stamp duty leviable on financial securities transactions.
  1. Access of equity and bond markets by state-owned firms to raise resources.
  2. Levy of road and infrastructure cess of Rs. 8 per litre on imported petrol and diesel by the Budget.
  3. Government to purchase surplus solar power, generated by solar water pumps installed by farmers to irrigate their fields. Allocation of Rs 4,200 crore for capacity addition in wind, solar and green energy corridor projects.
  • Finance from India Infrastructure Finance Company Ltd, a wholly-owned Government of India Company, to help finance major infrastructure projects including investments in educational and health infrastructure.
  • Market regulators to consider investments in A-rated bonds.
  1. Securities and Exchange Board of India to consider mandating, beginning with large corporates, to meet about one-fourth of their financing needs from the bond market.
  2. Listing of 14 Central Public Sector Enterprises (CPSEs), including two insurance companies, on the stock exchanges; Initiation of strategic disinvestment process in 24 CPSEs; Strategic privatization of Air India; Merger of 3 public sector general insurance companies namely, National Insurance Company Ltd., United India Assurance Company Limited and Oriental India Insurance Company Limited into a single insurance entity and then the subsequent listing of such entity on the stock exchanges.

There have been mixed responses from various industry experts. A few experts have stated that they do not see any significant job creation from the Budget proposals. Whereas others have stated the focus of the Government on execution and completion of the existing infrastructure projects and increase in Budget allocation towards the same may have a positive outcome on the economy, and that the investments in such projects may lead to employment generation.

Thus, the aforesaid Budget proposal and allocation to the infrastructure sector reflects the Government’s firm commitment to boost investment for growth and development of the Sector.

 

Harini Daliparthy

Senior Legal Associate

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Finance Minister Mr. Arun Jaitley on 1st February 2018 while presenting the Union Budget 2018-2019 said that the Government is steadfast to take additional measures to further strengthen and support angel and venture capital (VC) investors operations in India.

Mr. Jaitley also said that the VC funds and angel investors need an innovative and special development and a regulatory regime for growth. Adding to which he further said, “We have taken a number of policy decisions, including launching of Startup India programme, building a very robust alternative investment regime in the country and rolling out a taxation regime designed for the special nature of VC funds and angel investors,”.

However, the Investors have been expecting a relaxation in the angel tax levied on angel investors who put in their money across early stage start-ups which is considered a high investment risk. Presently, funds from angels are taxed at over 30% if it is more than the fair market value (FMV).

Angel Tax Clause was introduced in Budget 2012, this clause in Section 56 of the Income Tax Act explicitly states that all startups are liable to pay taxes on money invested as capital, including on angel funds.

He further said that the Government’s main focus is to have better regulation to govern angel and VC investors by fixing regulatory issues to reinforce the environment for angel investors growth and successful operation of the alternative investment fund in India.

The Finance Minister emphasized the importance of using Financial Technology (FinTech or fintech). FinTech is the application of technology by the financial industry to improve financial activities. FinTech will help the growth of micro, small and medium enterprises (MSMEs). He further said, “A group in ministry of finance is examining the policy and the institutional development measures needed for creating the right environment in the fintech companies to grow in India,”.

Financial technology companies consist of both start-ups and established financial and technology companies trying to replace or enhance the usage of financial services provided by existing financial companies. The use of smartphones for mobile, banking and investing services are examples of technologies aiming to make financial services more accessible to the general public.

Hence, the Government’s measures to help the expansion of financial technology start-ups will make it easier for MSMEs to access capital.

Taruna Verma

Senior Associate

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Prime Minister Narendra Modi delivered the keynote speech at the World Economic Forum, 2018 at Davos, Switzerland. At the Forum, speaking of India’s incredible growth story, he mentioned issues that have affected India and also the growth that business, economy and technology have attained here.

Mr. Modi also suggested the business community to do business with India while speaking to global CEOs in the Forum.

Some of the major issues addressed by Prime Minister Narendra Modi in his keynote speech are:-

Prime Minister Narendra Modi on India’s future

India will be the world’s fastest-growing major economy in 2018, according to the International Monetary Fund’s latest World Economic Outlook update.

India’s GDP has been growing at around 7% per year since Prime Minister Narendra Modi’s Government and next year India’s economy will be one-third bigger than when he came to power. He also addressed major economic and social challenges such as income inequality, gender disparity and extreme levels of pollution.

Terrorism

Talking about terrorism, which is the next biggest problem in the world, Mr. Modi referred terrorism to be the second biggest challenge. All the Governments are aware of India’s concerns and the serious threats posed to the mankind. A greater danger is the artificial distinction created between good terrorism and bad terrorism. Another danger is that educated youth are being radicalized and getting involved in terrorism.

Technology

Addressing on technology and data in today’s world, Mr. Modi said that the Technology-driven world is changing lives.  Technology has impacted every aspect of our lives.

Technology is creating the greatest opportunities, but also huge challenges. He also addressed the problems faced by a technology-driven world, saying that “cyber security and nuclear security” are challenges faced by the world.

Democracy

Prime Minister Narendra Modi said that Indians are proud of their democracy and diversity. For a society with diverse religions, cultures, languages, attires and cuisines, democracy is not just a political system but a way of living. In India democracy, demography and dynamism are giving shape to development and destiny.

Growth in India

Narendra Modi’s Government implemented a one nation, one tax regime in the form of Goods and Services Tax for the first time in India and the business community from all over the world appreciated it.

FDI in India

Mr. Modi also talked about how working, travelling and manufacturing in India is way easier now and added that all sectors of India are open for FDI.

India’s GDP

Mr. Narendra Modi also noted that in 1997 when the then current Prime Minister visited Davos, India’s GDP was a little more than USD 400 billion, but now it has increased more than six times.

In conclusion, Prime Minister Narendra Modi impressed the audiences at the World Economic Forum in Davos. His speech was not just motivating and thought-provoking but also highlighted India as the country of the future.

 

Sanchayeeta Das

Legal Associate

The Indian Lawyer

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Around 3000 world leaders from the fields of business, politics, academics, etc had attended the 48th World Economic Forum (WEF) Annual Meeting from 23rd January 2018 to 26th January 2018 in Davos, Switzerland to discuss major global issues and to brainstorm on probable solutions to address those issues.

The Prime Minister of India, Shri Narendra Modi had also attended the Meeting and addressed the gathering of world leaders and global Chief Executive Officers (CEOs) to discuss about the three most significant challenges to civilization i.e. “climate change, terrorism and an increased self-centredness.” He also spoke about the growing opportunities and dangers of technology, and India’s efforts to adopt green technology, to attract foreign investments in India, etc. As reported by the WEF, India will be the world’s fastest growing major economy in 2018 (source: International Monetary Fund).

According to the 21st survey of CEOs conducted by PricewaterhouseCoopers Private Ltd (PwC), a global consultancy Company, during August to November 2017, India has emerged as the fifth most attractive destination for investments from across the world, leaving behind Japan. The CEOs covered under this Survey included CEOs, primarily, from the following companies:

The revenue of 40 per cent of the companies was at least $1 billion and 35 per cent of firms’ revenues ranged between $100 million and $1 billion. Around 20 per cent of the companies had revenues of up to $100 million while 56 per cent of the entities were privately owned.

As per the Survey, the structural reforms that have taken place in India in the past one year, the efforts of the Government to address serious concerns like infrastructure, manufacturing in India, cyber security, climate change, etc may have positively affected the minds of global CEOs.

Although the global CEOs seem to have some concerns about investing in India, such cyber threats, terrorism, climate change, availability of key skills and recruits, exchange rate volatility, changing consumer behavior, threat of over- Government regulations and increasing tax burdens, etc.

But in the Meeting, Shri Narendra Modi had stated that investing in India, manufacturing in India has become easier because India has pledged to end License Raj, remove red tapism, etc, thereby inviting global investors to invest in India. He further stated that India is poised to become $5 Trillion Economy by 2025. Moreover, the Government of India has made the following efforts to encourage increased foreign investments in India:

  • Reduced compliances and documentation for foreign investment in India,
  • Further relaxation of foreign direct investment (FDI) norms in Single-Brand Retail Trading, Civil Aviation, Construction Development and Power Exchanges, and other FDI reforms,
  • Implementation of Goods and Services Tax (GST) laws, whereby GST will subsume most of the existing multiple indirect taxes which may reduce the cost of tax compliance, logistics cost, transaction cost, etc and bring a stability and transparency in the tax regime making it easier to do business in India,
  • Enactment of Insolvency and Bankruptcy laws, to consolidate and amend the laws relating to reorganisation and insolvency resolution of corporate persons, partnership firms and individuals in a time bound manner,
  • Setting up of bodies/agencies such as the Securities Exchange Board of India (SEBI) to protect the interests of investors, to educate the investors to make informed investments, to address investor grievances, etc,
  • Creation of an investor facilitation cell in ‘Invest India’ to guide and assist the investors during the entire life-cycle of the business, etc.

Therefore, the Government of India has relaxed FDI norms and introduced other reforms in its efforts to make foreign investment in India less complicated, and to make India the most attractive investment destination across the globe.

 

Harini Daliparthy

Legal Associate

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Recently, in Vishwas Bhamburkar v. PIO, Housing & Urban Development Corporation Ltd., CIC/HUDCO/C/2017/164658, the Central Information Commission (CIC) was confronted with an issue relating to denial of information on lack of producing identity proof by the Applicant under the Right to Information Act (RTI), 2005.

In this case, the Applicant held misuse of funds of The Housing and Urban Development Corporation Limited (HUDCO) and therefore filed an RTI Application seeking information about the amounts spent from the funds of HUDCO on gifts for years 2013 to 2016, renovation of official residence of its Chairman and Managing Director, electricity bills of official residence. The Central Public Information Officer (CPIO) stated that information could not be furnished by them as the Applicant failed to provide proof of identity and proof of address by producing Aadhar Card, Voter’s ID Card or Passport as proof of citizenship.

The CIC criticized the CPIO’s act in not furnishing information to the Applicant and made the following observations:

  1. The Right to Information Act, nowhere prohibited ‘person’ from securing the information due to failure to prove citizenship. A person cannot be denied information on the pretext that he did not produce proof of citizenship.

 

  1. That the CPIO can deny information only under Section 8 (exemption from disclosure of information) and Section 9 (grounds for rejection to access in certain cases) of RTI Act. It cannot invent new grounds for denial like lack of Aadhar Card, Voter Id Card, and Passport etc.

 

  1. Section 6(2) of RTI Act says an applicant making request for information shall not be required to give any reason for requesting the information or any other personal details except those that may be necessary for contacting him.With reference to the facts of the present case the CIC observed that the Applicant gave address to which information could have been dispatched.

 

 

 

Sanchayeeta Das

Legal Associate

The Indian Law

 

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The Government of India has planned for early implementation of the electronic way bill (E-Way Bill) System with effect from 01.02.2018, which is an important element of the goods and services tax (GST) regime in India.

Meaning:

The E-Way Bill is a bill generated from the GST Network (GSTN) which is mandatory for every transporter to carry, for inter-state and intra-state transportation of goods worth more than Rs 50,000 within the country, except in certain cases. The E-Way Bill need not be generated in cases where goods being transported by a non-motorised conveyance; goods being transported from the port, airport, air cargo complex and land customs station to an inland container depot or a container freight station for clearance by Customs; and when Consignment value is less than Rs 50,000 among others.

Advantages to the Government:

This Bill is an evidence of the movement of goods, a tool to check that goods being transported comply with the GST Laws, and to check tax evasion.

Validity of the E-Way Bill:

The E-Way Bill once generated would be valid for one day (24 hours) and in exceptional cases, the Commissioner of GST may, upon expiry of the E-Way Bill, generate another E-Way Bill with the details of goods.

Early adoption of the System:

The decision to adopt the E-Way Bill System early may be as a result of the decline in GST revenue in the past few months.

Countrywide E-Way Bill trials:

The Government had conducted nationwide E-Way Bill trials on 16.01.2018. Various industry experts have expressed concern about whether the IT infrastructure would be able to support the large volumes of E-Way Bills generated in the GSTN.

Portal for E-Way Bill:

The National Informatics Centre (NIC), Government’s premier Science and Technology Organisation had created a specific portal (ewaybill.nic.in/) (Portal) to generate an E-Way Bill, which the transporter has to carry along with the invoice of the goods. Reportedly, the E-Way Bill System has been designed to handle around 50 lakhs E-Way Bills per day. The CEO of GSTN has clarified that such online data is protected and that such data is accessible only to the tax payer and the tax officer.

Possible fallouts:

This System may have some fallouts including connectivity issues in small towns, difficulty in operations in case of System/Portal disruption, understanding of such complex mechanism and compliances by small traders and transporters, etc.

Public Reaction:

Many companies and traders have reacted to the early adoption of E-Way Bill System in India stating that a number of businesses are apprehensive that the nationwide implementation of this System may lead to delays in transportation and arbitrary inspections of consignments by the mobile squads; that the Portal may not be able to handle the huge volumes of E-Way Bills generated and so the implementation should be delayed until the Portal works smoothly; that the Government may use quick response (QR) codes to validate the goods being transported instead of E-Way Bills, etc.

Moreover, a few companies have supported this move of the Government stating that the organized section of the long-distance logistics industry may contribute towards the rapid growth of the Indian economy.

 

Harini Daliparthy

Legal Associate

 

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On 17th January 2018 in the matter of Keelnage Products (India) Private Limited vs. 1. The Registrar of Trade Marks 2. Union of India, the Bombay High Court heard the Petition seeking prohibition of removal of the Petitioner’s trademark ‘KLITOLIN’ from the records of the Register of Trademarks.

Kleenage Products Private Limited is a company engaged in manufacture and sale of washing and cleaning preparations. The Petitioner, as per the registration procedure, applied for registration of their trademark ‘KLITOLIN’ which was accepted by the Trade Marks Registry and in between 1988 to 2009, the qualified trademark was renewed multiple times.

The Petitioner failed to tender application for the renewal of the said trademark which was due for renewal on August 21, 2009. Thereafter, it was discovered by the Petitioner that the said trademark is likely to be removed from the Register of Trademarks due to non-renewal of the original or previous registration of the said trademark.

Advocate of the Petitioner, Hiren Kamod submitted that because Respondent No.1 has failed to issue the mandatory O-3 notice, restoration ought to be allowed. He placed reliance on the Judgement of a Division Bench of the Bombay High Court in Cipla Limited v Registrar of Trade Marks and Another, wherein it was held that “the Registrar must give prior notice in form O-3 to the registered proprietor or to each of the joint registered proprietors in writing, putting them to notice of the impending expiry of registration of the mark. The removal of the registered mark from the register entails civil consequences for the registered proprietor of the mark. The said removal of the registered trade mark, in the scheme of things, therefore, cannot be done without prior notice to the registered proprietor/joint proprietors in the prescribed form.”

The Judgement further stated that “The mere expiration of the registration by lapse of time, and the failure of the registered proprietor of the trade mark to get the same renewed, by itself does not lead to the conclusion that the same can be removed from the register by the Registrar of Trademarks without complying with the mandatory procedure prescribed in Section 25(3) of the aforesaid Act or read with Rule 67 of the aforesaid Rules.”

Section 25 in The Trade Marks Act, 1999- Duration, renewal, removal and restoration of registration:

(1) The registration of a trade mark, after the commencement of this Act, shall be for a period of ten years, but may be renewed from time to time in accordance with the provisions of this section.

(2) The Registrar shall, on application made by the registered proprietor of a trade mark in the prescribed manner and within the prescribed period and subject to payment of the prescribed fee, renew the registration of the trade mark for a period of ten years from the date of expiration of the original registration or of the last renewal of registration, as the case may be (which date is in this section referred to as the expiration of the last registration).

(3) At the prescribed time before the expiration of the last registration of a trade mark the Registrar shall send notice in the prescribed manner to the registered proprietor of the date of expiration and the conditions as to payment of fees and otherwise upon which a renewal of registration may be obtained, and, if at the expiration of the time prescribed in that behalf those conditions have not been duly complied with the Registrar may remove the trade mark from the register: Provided that the Registrar shall not remove the trade mark from the register if an application is made in the prescribed form and the prescribed fee and surcharge is paid within six months from the expiration of the last registration of the trade mark and shall renew the registration of the trade mark for a period of ten years under sub-section (2).

(4) Where a trade mark has been removed from the register for non-payment of the prescribed fee, the Registrar shall, after six months and within one year from the expiration of the last registration of the trade mark, on receipt of an application in the prescribed form and on payment of the prescribed fee, if satisfied that it is just so to do, restore the trade mark to the register and renew the registration of the trade mark either generally or subject to such conditions or limitations as he thinks fit to impose, for a period of ten years from the expiration of the last registration.

The Bombay High Court held that any such removal can only be possible if prior notice has been sent to the Registered Proprietor which is mandatory under Section 25(3) of the Trade Marks Act 1999 and allowed the Petition and directed the Registrar to consider the application tendered by the Petitioner for renewal of trademark along with the prescribed fee.

Therefore, the registered trademark cannot be removed from the Register of Trademarks by the Registrar of Trademarks without prior notice to the registered proprietor.

Taruna Verma

Senior Associate

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In the most unprecedented events in the history of the Supreme Court (SC) of India, four senior most SC Judges, namely Justice Jasti Chelameswar, Justice Ranjan Gogoi, Justice Kurian Joseph and Justice Madan B Lokur have publicly aired, in a Press Conference dated 12.01.2018, their differences and grievances against the Chief Justice of India, Justice Dipak Misra (CJI) against the alleged allotment of important matters by the CJI to certain Benches of preference and the alleged formation of Constitution Benches by the CJI by including only certain Judges and ignoring Senior Judges of the Apex Court.

The 4 Judges, who are all members of the SC Collegium, have released a letter, which was earlier written to the CJI, to the media detailing their critique of the CJI which stated the following:

  1. Certain judicial orders passed by the SC have adversely affected the functioning of justice delivery system.
  2. It is a privilege of the Chief Justice to form a roster and assign cases to different judges/benches of a court. But it does not imply that it is recognition of any superior authority of the Chief Justice over his colleagues. Rather, the Chief Justice is only the first among equals.
  3. While determining a roster, there are well-settled and time honored conventions to guide a Chief Justice as to the strength of the Bench required to deal with a particular case or the composition thereof.
  4. Any departure from the aforesaid two rules is not desirable as it would create doubts about the integrity of the Institution.
  5. They have made allegations against the current CJI pertaining to his non-adherence to the twin Rules above-mentioned in preparing the roster and assigning important cases to benches of his preference without any rationale.
  6. They have referred to a two-Judge Bench SC matter of P. Luthra vs. Union of India, 2017, wherein a writ petition was filed before the SC challenging the recommendation of four names by the SC Collegium in May, 2016 for appointment as SC Judges, on certain grounds, one of which is that the Collegium should not have made the recommendation without finalizing the Memorandum of Procedure (MoP), which has to be complied with for appointment of judges to high courts and SC, as suggested by the Constitution Bench of the Supreme Court vide judgment dated 16.10.2015 in Supreme Court Advocates-on-Record Association & Anr. Vs. Union of India & Ors.
  7. The two-Judge Bench of SC in P. Luthra (supra) had rejected the Petition and held that the Memorandum of Procedure should be finalized soon, in view of larger public interest.
  8. But the four SC Judges objected to and stated that the issue about finalization of MoP was already dealt by the Constitution Bench of the SC in Supreme Court Advocates-on-Record Association & Anr. (supra). Later, the MoP was also finalized by the then CJI and the Collegium, and was sent by the then CJI to the Government, to which the latter never responded. So, the MoP should be deemed to be accepted by the Government. Therefore, there was no occasion for the two-Judge Bench in P. Luthra (supra) to make any observation about finalization of the MoP or that such issue should not linger on for an indefinite time. Thus, matter of such grave importance should be dealt with by none other than a Constitution Bench.
  9. The four SC Judges have asked the CJI to view this issue with serious concern and to rectify the situation and take remedial measures after discussing it with other members of the Collegium and if need be, with other Judges of the SC.

The four SC Judges further stated about the alleged preferential treatment by the CJI that unless this institution is preserved and it maintains its equanimity, democracy will not survive in this country or any country. For a survival of a democracy it is said that a hallmark of a good democracy is an independent and impartial judge. It has been speculated by some SC Advocates that the constitution of Benches and allocation of matters is being administratively done by the SC in a manner more palatable to the Government.

The 9-Judge Bench of the Apex Court in Supreme Court Advocates-on-Record Association & Anr vs. Union of India & Ors 1993 had held that independence of the Judiciary is a part of the basic structure of the Constitution of India. Further, the SC herein made the following observations and rulings:

  • The Judiciary, under the Constitution, is designed to act as an intermediary body between the people on the one side and the Executive on the other.
  • The role of the Judiciary, under the Constitution, is a pious trust reposed by the people. 
  • In the event that the Judiciary fails, the Constitution also fails and as a result, people might opt for some other alternative.
  • Independence of Judiciary is a sine qua non of democracy, i.e. so long as the Judiciary remains truly distinct from both the Legislature and the Executive, the general power of the people can never be endangered from any quarters.
  • That the judicial independence is inextricably linked and connected with the constitutional process of appointment of Judges of the higher courts. Therefore, there cannot be an independent Judiciary if the power of appointment of judges vests in the Executive. So, if the final say of the Executive in the process of appointment of judges is excluded; only then can the independence of Judiciary (i.e. independence of individual judges as well as of an institution as a whole) be maintained. That is because the Governments – Central or the State – are parties before the courts in a number of cases.
  • Moreover, the SC stated that the view of the Chief Justice of India is to be expressed in the consultative process as truly reflective of the opinion of the Judiciary, which means that it must necessary have the element of plurality in its formation. It implies that in actual practice, the final opinion expressed by the Chief Justice is not merely his individual opinion, but an opinion formed collectively by a body of Judges at the apex level in the Judiciary.

There have been mixed reactions across the country to this unprecedented move of the four SC Judges. The SC Bar Council has decided to form a 7-member delegation of the Council who will meet the 4 SC Judges to resolve the matter at the earliest.

 

Harini Daliparthy

Legal Associate

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The Government made a major move to attract more foreign direct investment(FDI) into the country by relaxing FDI norms in key sectors which are as follows:

  • 100 per cent FDI under automatic route in single brand retail trading (SBRT) on 10th January, 2018. It is also likely to benefit big foreign single brand retailers such as IKEA
  • It also allowed foreign airlines to invest up to 49 per cent under approval route in national carrier Air India. This move is expected to expedite the divestment process for Air India.
  • 100 per cent FDI in construction development via automatic route was also cleared.

The Government permitted foreign airlines to invest up to 49 per cent in disinvestment-bound Air India and liberalised rules for foreign investment in single brand retail, construction and power exchanges.

Chandrajit Banerjee, Director General, CII said: “India continues to attract high levels of foreign direct investment. Today’s announcement includes multiple measures targeted at specific sectors where opportunities exist……the decision to permit foreign airlines to invest up to 49 percent in Air India is expected to bring some capital to support a turnaround in the national carrier.”

The Union Cabinet has decided to allow foreign investments, including from foreign airlines, to up to 49 per cent in Air India but the relaxation of FDI norms for foreign airline investment in Air India is subjected to certain conditions such as the substantial ownership and effective control of Air India shall continue to be vested in an Indian national.

Anaindya Banerjee, Currency Analyst at Kotak Securities said that “The relaxed rules will give an additional push to the rupee, which is likely to gain this year.”

New FDI norms in a SBRT sector will gain further impetus due to the process of not being subject to regulatory scrutiny and approval process.

The relaxed FDI norms should lead to further increase in foreign investment inflows and to provide ease of doing business in India.

Taruna Verma

Senior Associate

 

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