Anticipatory Bail and Section 18 SC & ST (Prevention of Atrocities ) Act

As a lawyer, it is also my  duty towards society at large to spread awareness in society in respect of anticipatory Bail against filing of false criminal complaints under section 3 of the SC & ST (Prevention of Atrocities) Act 1989. Herein after referred as Act.

By way of writing this blog, I am trying my best to inform that anticipatory bail under section 438 of code of criminal procedure ( cr.p.c) and the provision of Section 18 of the Act are in conflict with each other as the scope of  S.18 of the Act read with section 438 of Cr.p.c is such that S.18 creates specific bar for anticipatory bail to be granted when an offence punishable S. 3 is made out. No court shall entertain an application for anticipatory bail unless it prima facie finds such an offence is not made out.

The scope of anticipatory bail is related to right to personal liability as mentioned under Article 21 of Constitution of India while section 18 says that section 438 of Cr.p.c does not apply to persons committing an offence under the Act. In that case, how to justify S.18 of the Act and S.438 of Cr.p.c is a question where there is an accusation of having committed an offence under the Act.

Let me discuss this point in detail with the help of relevant case laws.

In a case of Pankaj D. Suthar vs. State of Gujarat reported in (1992) 1 GLR 405, the question was arisen "whether in cases wherein the accusation in the complaint levelled against any person is to the effect that he has committed an offence punishable under S.3 of the Act, which on prima facie judicial scrutiny is found to be not free from doubt, can then in such cases the accused person be blindly and mechanically denied the benefit of anticipatory bail under S. 438 of Cr.p.c. by virtue of the provisions contained in S.18 of the Act merely because he has been so mischievously branded as an accused of having committed an offence under the Atrocities Act ?" In this case the Hon'ble Gujarat High Court observed that "whether any statute like the present Atrocities Act, especially enacted for the purposes ofprotecting weaker sections of the society hailing from S.C. & S.T. communities can be permitted to be abused by conveniently converting the same into a weapon of wrecking personal vengeance on the opponents?' The answer to this question is undoubtedly and obviously 'No'. Under such circumstances, if the Courts are to apply such provision of Section 18 of the Atrocities Act quite mechanically and blindly merely guided by some general and popular prejudices based on some words and tricky accusations in the complaint on mere assumptions without intelligently scrutinizing and testing the probabilities, truthfulness, genuineness and otherwise dependability of the accusations in the complaint etc., then it would be simply unwittingly and credulously playing in the hands of some scheming unscrupulous complainant in denying the justice. Virtually, it would be tantamount to abdicating and relegating its judicial duty, function of doing justice in such matters in favour and hands of such unscrupulous complainant by making him a Judge in his own cause. This is simply unthinkable and therefore impermissible. Whether the provisions of any particular Act and for that purpose the rules made there under are applicable to the facts of a particular case or not, is always and unquestionably a matter which lies strictly and exclusively within the domain of 'judicial consideration-discretion' and therefore neither mere allegations made in the complainant by themselves nor bare denials by the accused can either automatically vest or divest the Court from discharging its ultimate judicial function-duty to closely scrutinize and test the prima facie dependability of the allegations made in the complaint and reach its own decision." Based on this observations  in paragraph  no. 4 of the judgment,  the   appeal for anticipatory  bail was allowed.

In   the judgement of Supreme Court  in the case of Vilas Pandurang Pawar vs State of Maharashtra reported in 2012 8 SCC 7956, it was observed in paragraph no. 8 of the judgment that Section 18 of SC/ST Act creates a bar for invoking Section 438 of the code. However, a duty is case on the court to verify the averments in the complaint and to find out whether an offence under Section 3(1) of the Act has been prima facie made out. In other words, if there is a specific averment in the complaint, namely, insult or intimidation with intent to humiliate by calling with caste name, the accused persons are not entitled to anticipatory bail.

 it was further observed in paragraph no. 9 that the scope of Section 18 of the SC/ST read with Section 438 of the Code is such that it creates a specific bar in the grant of anticipatory bail. When an offence is registered against a person under the provisions of the Atrocities Act, no Court shall entertain application for anticipatory bail, unless it prima facie finds that such an offence is not made out. Moreover, while considering the application for bail, scope for appreciation of evidence and other material on record is limited. Court is not expected to indulge in critical analysis of the evidence on record. When a provision has been enacted in the special Act to protect the persons who belong to the Scheduled Castes and the Scheduled Tribes and a bar has been imposed in granting bail under  of the Code, the provision in the special Act cannot be easily brushed aside by elaborate discussion on the evidence. In this case the allegations and averments  in the complaint clearly established that that the complaint had made out a case under the Atrocities Act and therefore as per paragraph no. 12 of that judgment section 18 of the Act is applicable to that case and hence, Hon'ble SC rejected that petition as the petitioners are not entitled to anticipatory bail under section 438 of Cr.P.C. 

Subsequently the principle laid down by Supreme Court in above mentioned judgment is followed and reiterated by SC in Bachu Das vs. State of Bihar and others, reported in (2014) 3 SCC 471.

In case of MANJU DEVI V/S ONKARJIT SINGH AHLUWALIA @ OMKARJEET SINGH & OTHERS on 24/3/2017, Hon'ble SC has taken the same view relying upon the judgment of Vilas pawar as referred herein above. 

In recent case between Hareshbhai Dhirubhai Danger vs. State of Guarat & Anr. reported in 2017(3) GLR 1919, Hon'ble Gujarat High Court observed in paragraph no. 9 of the judgement that where the provisions of Atrocities Act are alleged to have been violated while dealing with an application for anticipatory bail, it is the duty of the court to see as to whether an offence under section 3 of the Act has prima facie been made out or not before rejecting an application for anticipatory bail. For this limited inquiry also, very strict standards should be applied by the Court against the accused and in favour of the complainant. After applying such standard, if on facts it is found that the offence under the Atrocities Act is prima facie not made out, then such an application needs to be considered on merits. It may happen that, on merits, the applicant may not be entitled to anticipatory bail, but even to reject such an application on merits, such application has to be accepted as maintainable first. It is this exercise which needs to be undertaken by the Court as mandated by the Hon'ble Supreme Court of India.

Considering the above mentioned legal scenario and ratio laid down by Apex Court, it is concluded that it should not be mechanically decided by the Courts when they adjudicate the applications for anticipatory bail pertaining to the allegations of offences related to section 3 of the Act. The courts should look into the facts and decide that whether an offence is prima facie made out or not. whether there is truthfulness in the complaint or not. whether there are abusing words being used and those words are referred in the complaint by the complainant or not as it is the duty of the Judge to justify such type of application by judicial mind to prevent the abuse of law and to give proper justice to the victims. Section 18 of the Atrocities Act does not prevent the Court to think judicially in the case of  anticipatory bail qua allegations of offences under Atrocities Act. 

Chirag Bhatt

Lawyer

09824025041 

WHETHER A TITLE OF A BOOK CAN BE REGISTERED AS A TRADEMARK !

As an IP lawyer while reading one judgment, I inspire myself to write this article in respect of a subject that whether a title of a book can be registered as a trademark. The basic information pertaining for getting a trade mark registered is that that trade mark must not have been devoid of a distinctive character. It must be capable of distinguishing the goods or services of a person from those of another person and it must be capable of being represented graphically.  Such a trade mark must not be within the purview of the provisions of section 9 and 11 of the Trademarks Act 1999 (herein after referred as Act for short) 

Coming to the captioned point of this article, let me visualize that whether a title of a book is capable enough to distinguish the goods i.e. book of one publisher from that of other publisher. Whether a title is descriptive or whether that title of a book has a distinguishing feature or characteristic of a book within the meaning of the provisions of the Act. Whether there are sufficient evidences to establish that the title of a book has acquired distinctive character qua that book of which it is a title.

In the case of Anne Frank-Fond’s Trade Mark Application reported in (2015) R.P.C. 31 The applicant, a charitable foundation, applied for the registration of book titles namely ‘THE DIARY OF ANNE FRANK and THE DIARY OF A YOUNG GIRL for trade marks in relation to goods and services including “printed matter, periodicals; magazines; newspapers and books” in class 16 and “arranging of guided tours for cultural or educational purposes”.  Both applications were rejected under S.3 (1) (b) and 3(1) (c) of the U.K. (section 9 of the Indian Trademarks Act, 1999) Trade Marks Act 1994 though the evidence of use was filed to establish distinctiveness.  

The applicant filed evidence of witness consisting a statement that the role of the applicant as a licensor with regard to reproductions and adaptations of the ‘The Diary of a Young Girl’ and ‘The Diary of Anne Frank’ marketed in visual, audio and audio-visual form in the U.K. and elsewhere in the world to satisfy that the provisions of the Section 3(1) of the Act had not come in the way of registration. The applicant also showed that the book under the title ‘The Diary of Anne Frank’ was fourth in the Top 10 books written by women. It was also shown that the Diaries of Anne Frank were added to the list of documentary heritage of exceptional value on UNESCO’s Memory of the World Register along with the other historical records from around the world.

The hearing officer rejected the application for registration giving reasons that the mark applied for consists exclusively of a sign which may serve, in trade, to designate the   kind, quality, quantity, intended purpose, value, geographical origin, the times of production of goods or of rendering of service or goods i.e. subject matter and is therefore excluded from registration by section 3(1)( c ) of the Act. Moreover, it was observed by the hearing officer that in case of ‘The Diary of a Young Girl’ and ‘The Diary of Anne Frank’ the evidence clearly shows that the mark has been used by a number of different publishers to indicate the title of the work. This is not use in trade mark sense. But it is a use indicating to a potential reader the subject matter of the book. The title is not being used to distinguish the goods of one publisher from those of another. No evidence stated that at the date of application, the average consumer had been educated into seeing the sign as indicating the trade origin of the goods or services and therefore, the mark is excluded from acceptance as it fails to qualify under section 3(1)(b) and (c) of the Act.

 Subsequently, an appeal was filed before the appointed person against the Order passed by the hearing officer. The issue in Appeal was that whether the hearing officer had made an error by rejecting an application after deciding that titles of the books did not possess the distinctive character in view of the provisions of S.3. (1)(c) of the Act. The question was that whether famous book titles were a “characteristic” of goods was an issue involved in the case.

In Appeal the appointed person made observation in respect of the Article 6quinquies (B2) of the Paris Convention for the Protection of Industrial Property and the provisions of Article 3(1)(c) of the Trade Marks Directive and Article 7(1)(c) of the Community Trade Mark Regulation and section 3(1)(c) of the Act about the exclusion of trademarks from registration. The appointed person observed in negative way that there is no any real room for uncertainly about the way in which ownership and exploitation of copyright may have a factual role to play inconsequentially from a trade mark point of view. In respect of descriptiveness. In the case Bach Flower Remedies Ltd vs.  Healing Herbs Ltd, reported in (2000) R.P.C. 513, it was observed that it cannot be said that fame necessarily enables a sign to individualize goods or services of all kinds to a single economic undertaking. Relying on this judgment, it is also held that a sign is liable to be excluded from registration in relation to goods of the kind for which it is descriptive and therefore, the appeal was dismissed.

As per Nice Classification (Class-16, 160095), a book, a book’s cover can be considered as trademark. If title of the book is distinctive and becomes the source identifier, it can be registered as a trade mark, provided that a book is considered as goods. Generally a title of a book is a source or a key of the description of the book. In that case title cannot be called distinctive. For example, if the title of a book is ‘ROSES IN DECEMBER’ for the book written by Hon’ble Justice M.C. Chagla, for his personal experiences of life, then that title becomes distinctive for that book, however, the title of that book is ‘ROSES IN DECEMBER an autobiography’ then this title becomes descriptive as having looked it, one can come to know that this book is an autobiography of Hon’ble Justice M.C. Chagla. From the title of the book when a reader comes to know about the contents of the book, that title becomes descriptive and therefore, it cannot be registered as trade mark, provided that the title is having secondary meaning of goods in trademark sense. By having the title of the book HARRY POTTER, a reader is unable to know what is inside the book, such title is distinctive in the trade mark sense.

Chirag Bhatt

IP Lawyer

09824025041

SHOULD GRAPHICAL REPRESENTATION of SOUND TRADEMARK BE OMITTED ?

As an IP Lawyer, I am thinking to write something on sound Trademark.

First of all it is correct to say that everyone is familiar with the words 'sound' and 'Trademark' in their individual capacity of word. The origin of sound i.e. 'Naad',   according to the mythology, first came into existence from the 'damaru' ( a small drum)  played by Almighty Lord Shiva. As per medical science, sound is produced by the vocal cords. i.e. origin of sound.

Now coming back to the topic sound Trademark,  in the era of science and technology, sound is used as a Trademark in commerce and industry and it becomes a source identifier of the origin of goods or products or services. Smell, Sound and Taste are all considered as non traditional trade marks. In respect of Sound Trademark, there are certain methods to be considered like visual representation , made by sonogram, spectrogram, spectrum and oscillogram as per the information provided on www.wipo.int . It is also provided on web site of WIPO  as per standard committee  of WIPO,  for registration of a sound mark, the representation of sound mark is to be made of a musical notation on a stave or a description of the sound constituting the mark or of an analog or digital recording of that sound or any combination thereof.

When sound becomes a sign which is capable of being represented graphically and of distinguishing the goods or services of one entity from that of other, such sound is considered as trade mark, provided that it fulfills all the conditions of registration  mentioned in law of each country and therefore, Article 15 of TRIPS is directly hit to constitute sound as a trade mark.

As per the information provided on www.inta.org , INTA bulletin Vol63 no. 17, first sound Trademark was registered in India on August 2008. The application was filed by YAHOO ! Inc. for services falling in Class 35,38 and 42. The sound mark of Yahoo was made of a human voice yodeling the word YAHOO!

The countries like U.S.A., U.K. France, Australia have already adopted sound as a trade mark since long. I am going to mention few best examples of sound marks which are registered but not in India. This information is based on website www.uspto.gov

1)72349496 the NBC Chimes: it was first sound mark registered in 1950.

2) 73270308 Insurance "At Beneficial TOOT TOOT You're Good for More"

3) 73553567 MGM- Entertainment- Roaring Lion

4) 74219263 Mattress Discounters - " HAVE A GOOD NIGHT'S SLEEP ON US, MATTRESS DISCOUNTERS

5) 75528557 America Online " You've got mail.

6) 75807526 Yahoo- " YAHOO" yodel

7)76260633 Abbey Carpet " IT'S ABSOLUTELY ABBEY ,AND IT'S ABSOLUTELY THE PLACE TO BE".

8)76316851 America Online - telephone movie directory- " HELLO AND WELCOME TO MOVIEFONE"

9)76586726 Cisco technology- audio conferencing systems- xylophone.

10) 75743899 NOKIA - guitar musical notes.

The concept of registration of sound mark is also recently developed in China and ' Sound of China Radio International' is the first sound Trademark in China. When there is talk of sound mark, and  the name of motor cycle king Harley- Davidson is not remembered, is unfair, this company filed its sound mark application for sound produced by V-twin motor bike engine in 1994 when it was in use, however, in the year 2000 Harley- Davidson left the idea of registration of a sound as its application was opposed  and litigation was made thereafter.

The legal scenario in India in respect of the sound mark has been changed as registration of sound mark is Incorporated in Trademark Rules, 2017 , more particularly in Rule 26(5) of it which says that when an application for sound Trademark is made, the reproduction of the same  shall be submitted in the MP3 format . It should not be exceeding the length of 30 second of recording and it has a graphical representation of its notations.

Thus as per Rule 26 (5) read with section 2 (zb) of the trade marks Act, 1999, it concludes that there are  two  basic legal requirements to be satisfied  to get the sound mark registered. 

1) sound mark must be capable  of  being  represented graphically.

2) it must be capable of distinguishing  the goods or services of one person  from those of others.

If the above mentioned  conditions  precedent  are not satisfied,  a sound mark can not be registered.

I am thinking that how it is possible  that all sound marks , being capable  of  distinguishing  the products or services , are  capable of being represented graphically .  Can  notations of sound be drawn in a paper ? Whether notations of sound  represented  on paper can be played by the way of mp3 ? Or  whether the purpose  of sound mark to identify the origin of goods or services  by the particular  music being played is maintained  if notes of music are on paper ? and moreover,  if another mode i.e. mp3 for sound mark is used, then what is the requirement of sound mark being represented  graphically ? How can chirping of birds, roar of lion, sound of water stream which makes human brain in relaxed or happy mood, be graphically  represented  ? Whether the natural rhythm of sound be coded on paper ?

The conclusion  of this article would be better if  I give my opinion  qua the terms "grafical representation ", should be amended to encourage the registration  of sound marks in India.  As per the website http:europa.eu of European Union intellectual  property  office ,  in EUTM, the graphical  repesentation requirement is no longer applied while submitting a trademark  application for sound mark from 1st October,  2017.  The object behind this is to increase legal certainty and to avoid ambiguities. Should we initiate such type of welcoming step to increase the registration  of sound marks ?

Chirag Bhatt

IP Lawyer

09824025041

NO USE OF TRADEMARK , NO REMEDY

As an IP lawyer, let it be informed that when a trade mark is not in use, no remedy is available for protection of that trademark on the ground of non use of it. In fact if it is proved that registered trademark is not in use, and it creates chaos, then, on the ground of non-use, such trademark is removed from register in respect of good or services for which it is registered as per the provision of section 47of the Trademark Act,1999 (herein after referred as the Act) . That's why mere registration of the trade mark is not enough, the use of the trade mark in business or services  plays vital role to get protection of it.

In the case of SIZZLER INTERNATIONAL MARKS in the year 2001, Inc, three registered trade marks SIZZLER were rectified by Trade mark as SIZZLERS RESTAURANT NO. 1 LTD filed rectification applications on the ground of non-use of such trade mark for the five years in U.K. The Registrar relied upon Section 46 of the U.K. Trademarks Act 1994 observed that "it is not only a privilege for a person to be the proprietor of a registered trade mark, but it represents a monopoly: the Court should not be too ready to perpetuate a monopoly in favour of a person who has not done anything to promote or enjoy it for a period of five years", Hence , the marks are rectified on the ground of non-use. 

The definition of the "Trade mark" under Section 2 (zb) of the Act clearly depicts that a trade mark should be used in relation to goods or services for the purpose of indicating a connection of trade between the goods or services and a person becomes a proprietor of the trade mark to use it.  It means that the entire Axis of the trade mark to be a source identifier revolves round on the use of the trade mark in course of business or service, as the case may  be. 

Section 2(b) of the Act informs that any reference to the use of a  mark is to be construed to  the use of printed or other visual representation of the mark and as per section 2 (c)(i), any reference of the use of a mark in relation to goods  shall be construed as a reference to use of a mark upon or in any physical or in any other relation to such goods and as per section 2 (c) (ii) in respect of services, any part of any statement about availability, provision or performance of such service as a reference to the use of a mark for such services.

Thus the above mentioned sections clearly indicate that the mark must be in use during the course of trade or service, if it  is not used and is idly registered, such registration does not give legal protection to the proprietor qua that idle registered trademark.

Now the question is arisen in respect of prima facie evidence of validity of the registered trade mark as per section 31 of the Act, whether can a registration of a trademark prima facie be considered a valid in legal proceedings even though there is no use of it in trade or business or services ?   The use of such registered trade mark must be proved or established at least prima facie for being protected in legal proceedings, otherwise, the doctrine of "non-use" of the trade mark would be frustrated.

Article 19 of TRIPS emphasizes on the requirement of Use of a trademark.  If a registered Trademark is not in use for an uninterrupted period of at least three year, the registration of such trade mark is  to be cancelled on the ground of non-use as per the provision of Article 19.

In the case of Neon Laboratories vs. Medical technologies reported in 2015 (0) AIJEL-SC 57240, Hon'ble SC Court considered the use of the trade mark 'PROFOL'  extensively and continuously by the plaintiff to consider the issue of prior user against the prior registration of the  defendant's trade mark  which became dormant for twelve  years after its registration. Thus Hon'ble Supreme Court considered that 'USE' of the impugned trade mark in that case to adjudicate the case and Appeal filed by the Appellate-Defendant was dismissed and confirmed the Order  of injunction passed by the trial Court.

Considering the legal scenario, it is opined that the when there is no use of trade mark in trade or service, such trade mark is not entitled to be protected and no remedy is available.

Chirag Bhatt
Partner-Litigation

Y.J.Trivedi & Co.

09824025041

ORDINARY CIVIL JURISDICTION Vs. ORDINARY ORIGINAL CIVIL JURISDICTION UNDER THE COMMERCIAL COURTS ACT, 2015

As an IP lawyer, I have gone through 'The Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015( herein after referred as Commercial Courts Act in short) and I find an interesting fact regarding the ordinary civil jurisdiction  and ordinary original civil jurisdiction of Hon'ble  Commercial Courts in respect of their constitution or establishment. 

The Law Commission of India, in its 253rd report has recommended for the establishment of Commercial Courts, the Commercial Division and the Commercial Appellate Division in the High Courts for disposal of commercial disputes of specified value of Rupees One crore and above. 

Based on the recommendation of the Law Commission, 'The Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Bill was introduced incorporating the provisions  about

(1)  the constitution of the Commercial Courts at District level EXCEPT for the territory over which any High Court is having ORDINARY ORIGINAL CIVIL JURISDICTION.

(2) the constitution of the Commercial Divisions in those High Courts which are already exercising ORDINARY CIVIL JURISDICTION and they shall have territorial jurisdiction over such areas on which it has original jurisdiction. 

(3) the constitution of the Commercial Appellate Division in all the High Courts to hear the appeals against the Orders of the Commercial Courts and the Orders of the Commercial Division of the High Court.

That Bill becomes Commercial Courts Act wherein the proviso  of Section 3 says that no Commercial Court shall be constituted for the territory over which the High Court has ORDINARY ORIGINAL CIVIL JURISDICTION. Meaning thereby the High Courts of Delhi, Calcutta, Bombay and Madras, having Ordinary Original Civil Jurisdiction have no commercial courts at District level of these four territories. They have only Commercial Division in their respective High Courts. 

Now provisions of section 7 of the Commercial Courts Act say about the Jurisdiction of Commercial Divisions of High Courts stating that all suits and applications relating to commercial disputes of a Specified Value filed in a High Court having ORDINARY ORIGINAL CIVIL JURISDICTION shall be heard and disposed by the Commercial Division of that High Court.  Meaning thereby, the Commercial Division can only be established in a High Court which has ordinary original civil jurisdiction and NOT in any other High Courts which has only ORDINARY CIVIL JURISDICTION.

Thus,  it is clarified that the where there are Commercial Courts at District level, there is no Commercial Division in a High Court of that State. It is further clarified that that where the High Courts have their own ordinary original civil jurisdiction (Four High Courts ), they have no Commercial Courts at District level in their State, they have only Commercial Division in High Court in place of Commercial Court at District level.

 Appeal arising against the Order or Judgement  passed by the Commercial Court or Commercial Division of a High Court  may be filed to Commercial Appellate Division of the respective High Court within Sixty days. 

Chirag Bhatt

IP Lawyer

09824025041

SHOULD COMMON LAW REMEDY PREVAIL OVER STATUTORY REMEDY IN IP LAWS

As an IP lawyer, I always think about the remedies available under the umbrella of statutes and common law and whether common law remedy should prevail over statutory remedy in respect of the rights of Intellectual properties. Let me discuss it in this article. 

First of all it is required to be understood what is statutory remedy and what is common law remedy. 

Statutory  Remedy: 

Statutory remedy means a remedy available in the statute for the protection of IPR or Statutes protect the rights of the owners of the intellectual properties. It is due to the necessity among human beings for maintaining the socio-legal and socio- economic condition of society, the legal system was developed. Statute is codified.  For instance, the remedy against the infringement of action and criminal action  mentioned in various IP laws. 

Common Law Remedy: 

Common law remedy means a remedy which is not within the ambit of any statute. It is based on unwritten common laws. Now the question is what is such common law ? As English people ruled over India for many years, Common laws are derived from English law, or judge-made law or case law or judicial precedent. They are based upon social costumes, rituals and traditions. The roots of common laws were enshrined in the period of Middle Age in England and it was imposed or applied on British Colonies across the world.  Such law is codified. They are not mentioned in the statutes. 

In IP Laws, common law remedy i.e. passing off action plays vital role along with the statutory remedy i.e. infringement action or criminal action in with regard to any suit and criminal complaint respectively. 

My concerned is whether common law remedy should prevail over statutory remedy as in the realm of IP, the awareness among people of India can only be spread by the way of statutory remedy. Registration of trade mark, copyright, design, patent or other IP is a part of statutory remedy. The Government has established separate body for registration of such IPR. Appellate Board is there. So after spending too much expenses, time and energy by Government for the protection of IPR qua registration of IPR for acquiring statutory rights. The protection of statutory rights, the power is enforced to the District Court for infringement action where the plaintiff resides or carries on business or works for personal gain as per section 134 of the Trade marks Act, 1999 and section 62 of the Copyright Act.

Is it logical that somebody who has not been registered proprietor of IP, comes and restrains the registered proprietor of IP on the basis of prior use of that IP, more particularly, trade mark. ?  Then what  is the meaning of being vigilant for acquiring statutory protection ?   What is the meaning of the establishment of Govt. offices for registration of IP ? On the basis of establishment of  prior use of the trade mark, a registered trade mark is rectified or the registered proprietor is restrained from using the registered trade mark. The entire exercise of registration and statutory remedy becomes futile.

In my opinion statutory rights should be protected and prevailed over common law rights if awareness and importance and value of IP law is  to be established in the eyes of  people.  I think those days of common law remedies should be over in the era of education, awareness, independence, expression. science, technology, commerce and industry.

Chirag Bhatt
IP Lawyer
09824025041