Consumer Protection Act, 1986
• The Act applies to whole of India except Jammu and Kashmir
• Chapter I, II and IV came into force on 15.4.1987. Chapter III came into force on 1.7.1987. The act was amended in 2002 and the amendments came into force w.e.f. 15th March 2003.
• A three tier fora comprising the District Forum, the State Commission, and the National Commission were established under the Act, for redressal of grievances of consumers.
Forum / Commission Value of the goods or services and the compensation, if any claimed,
District Forum Does not exceed Rs. 20 lakhs State Commission Rs. 20 lakhs and above but not
exceeding One Crore National Commission Above One Crore
Who is a Consumer ?
• Any person who buys goods or avails services for consideration . Consideration may be fully paid, partially paid or fully promised to be paid or partially promised to be paid.
• Any body who uses the goods or services with the consent of the consumer.
• Legal heir of consumer in case death of consumer.
• Does not include any person who buys goods for resale or commercial purpose and services for commercial purpose.
• However any person who buys goods for commercial
use but exclusively for his livelihood by means of self
employment is a consumer.
Rights of Consumers
• Right to safety
• Right to be informed
• Right to choose
• Right to be heard
• Right to seek redressal
• Right to consumer education
What is a Complaint?
“Complaint” means any allegation in writing made by a complianant that :
I. An unfair trade practice or a restrictive trade practice has been adopted by any trader or service provider;
II. The goods bought by him or agreed to be bought by him suffer from one or more defects ;
III. The services hired or availed of or agreed to be hired or availed off by him suffer from deficiency in any respect;
What is a Complaint? (Contd.)
IV. A trader or service provider as the case may be has charged for the goods or for the services mentioned in the complaint, a price in excess of the price
a) fixed by or under any law for the time being in force;
b) displayed on the goods or any package containing such goods;
c) displayed on the price list exhibited by him by or under any law for the time being in force;
d) agreed between the parties .
V. Goods which will be hazardous to life and safety when used are being offered for sale to the public –
a) In contravention of any standards relating to safety of such goods as required to be complied with, by or under any law for the time being in force;
b) If the trader could have known with due diligence that the goods so offered are unsafe to the public;
VI. Service which are hazardous or likely to be hazardous to the life and safety of the public when used, are being offered by the service provider which such person could have known with due diligence to be injurious to life and safety.
Filing of Complaints
A complaint may be filed by:
a) The consumer to whom the goods are sold or services are provided
b) Any recognised consumer association
c) One or more consumers with same interest d) The central government or state government
How to File a Complaint
The complaint should contain the following information:
a) The name, description and address of the complainant b) The name, description and address of the opposite
party/parties
c) The facts relating to the complaint
d) Documents, if any, in support of the allegations contained in the complaint
e) The relief which the complainant is seeking
Procedure on Admission of Complaint
1. Procedure in respect of goods where the defect alleged requires no testing or analysis
a) Refer a copy of the admitted complaint within 21 days from the date of its admission to the opposite party directing him to give his version within 30 days or such extended period not exceeding 15 days, or as granted by the District Forum.
b) If the opposition party denies or disputes the allegations contained in the complaint, or omits or fails to take any action to represent his case within the time given by the District Forum, the District Forum shall proceed to settle the dispute.
2. Procedure in respect of goods where the defect alleged requires testing or analysis
a) Where a complainant alleges a defect that cannot be determined without proper analysis or tests, the District Forum shall send a sample to an appropriate laboratory. The laboratory has to send its report to the District Forum within a period of 45 days of the receipt of the reference or such extended period as granted by the District Forum.
Procedure on Admission of Complaint
2. Procedure in respect of goods where the defect alleged requires testing or analysis (Contd….)
b) Before sending the sample to the laboratory, the District Forum may require the complainant to deposit the fees for carrying out the tests.
c) The District Forum shall remit the amount to the appropriate
laboratory for carrying out the tests. On receipt of the report from the appropriate laboratory, the District Forum shall forward the copy of the report along with such remarks as the District Forum may feel appropriate to the opposite party.
d) If any of the party disputes to the correctness of the findings or the method of analysis adopted by the appropriate laboratory, the
District Forum shall require that party to submit the objections.
e) The District Forum shall thereafter give a reasonable opportunity to the complainant as well as the opposite party to be heard as to the correctness or otherwise of the report made by the appropriate
laboratory and also to the objection made , and issue an appropriate order.
Procedure on Admission of Complaint
3. If the complaint relates to goods in which the aforesaid procedure cannot be adopted, or if the complaint relates to services, the
District Forum shall proceed to settle the dispute :
a) On the basis of evidence brought to its notice by the complainant and the opposite party, where the opposite party derives or
disputes the allegations contained in the contract
b) Ex parte on the basis of evidence brought to its notice by the complainant where the opposite party omits or fails to take any action to represent his case within the time given by the Forum 4. When the complainant fails to appear on the date of hearing before
the District Forum, the District Forum may either dismiss the complaint for default, or decide it on merit.
5. No proceedings complying with the procedure as aforesaid shall be called in question in any court on the ground that the principles of natural justice have not been complied with.
6. Speedy hearing of the complaints has to be made to take a decision within 3 months from the date of receipt of notice by the opposite party, when the complaint does not require analysis or testing, and 5 months if it so requires.
7. Where during the pendency of any proceedings before the District Forum, it appears to it necessary, it may pass such interim order as is just and proper in the facts and circumstances of the case.
Power of the District Forum
District Forum shall have the same powers as are vested in a civil court, in respect of the following matters:
• Summoning and enforcing the attendance of any defendant or witness, and examining the witness on oath
• Discovery and production of any document or other material object producible as evidence
• Reception of evidence on affidavits
• Requisitioning of the concerned analysis or test from the appropriate laboratory or from any other relevant source
• Issuing of any commission (i.e., warrant conferring authority) for the examination of any witness
• Any other matter which may be prescribed
Appeals
Appeal to State Commission
• Any person aggrieved by the District Forum order, may appeal against the order to the State Commission within a period of 30 days from the date of the order.
• No appeal shall be entertained by the State Commission from a person, who is required to pay any amount in terms of an order of the District Forum, unless the applicant has deposited 50 per cent of that amount or Rs. 25000, whichever is less.
Appeal to National Commission
• Any person aggrieved by the State Commission order, may appeal against the order to the National Commission within a period of 30 days from the date of the order.
• No appeal shall be entertained by the National Commission from a person, who is required to pay any amount in terms of an order of the State Commission , unless the applicant has deposited 50 per cent of that amount or Rs. 55000, whichever is less.
Appeals
An appeal filed before the State Commission or the National Commission shall be held expeditiously as possible, to dispose off the appeal within 90 days from the date of its admission.
Appeal to the Supreme Court against the Orders of National Commission
• Any person aggrieved by the National Commission order, may appeal against the order to the Supreme Court within a period of 30 days from the date of the order.
• No appeal shall be entertained by the Supreme Court from a person, who is required to pay any amount in terms of an order of the National Commission, unless the applicant has deposited 50 per cent of that amount or Rs. 55000, whichever is less.
Limitation Period
The District Forum, the State Commission, or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen.
Relief to the Complainant
If the complaint is proved the forum shall order
a) to remove defect pointed out by the appropriate laboratory from the goods in question;
b) to replace the goods with new goods of similar description which shall be free from any defect;
c) to return to the complainant the price, or , as the case may be, the charges paid by the complainant;
d) to pay such amount as may be awarded by it as compensation to the consumer for any loss or injury suffered by the consumer due to negligence of the opposite party;
e) To remove the defect in goods or deficiency in the services in question.
f) to discontinue the unfair trade practice or the restrictive trade practice or not to repeat them;
Relief to the Complainant (Contd.)
If the complaint is proved the forum shall order
f) not to offer hazardous goods for sale;
g) to withdraw the hazardous goods from being offered for sale;
• to cease manufacture of hazardous goods and to desist from offering services which are hazardous in nature;
• to pay such sum as may be determined by it, if it is of the opinion that loss or injury has been suffered by a large number of consumers who are not identifiable conveniently.
• to issue corrective advertisements to neutralize the effect of misleading advertisement at the cost of the opposite party responsible for issuing such misleading advertisement;
i) To provide for adequate cost to parties.
Elements of Company Law (Companies Act, 1956) Features of a Company
1. Incorporated association 2. Artificial person
3. Separate legal entity 4. Limited liability
5. Separate property
6. Transferability of shares 7. Perpetual existence
8. Common seal
9. Company may sue and be sued in its own name Classification of Companies
• A company limited by shares
• A company limited by guarantee
• An unlimited company
Lifting of Corporate Veil
1. For the protection of revenue
2. Where the company is acting as agent of the shareholders 3. Where a company has been formed for some fraudulent
purpose or is a sham
4. Where a company formed is against public interest or public policy
5. Where device of incorporation is used for some illegal or improper purpose
6. Where the number of members falls below the statutory minimum
7. Where prospectus includes a fraudulent misrepresentation 8. Holding and Subsidiary Companies
9. Investigation into related companies
10. For investigation of ownership of a company
11. Where in the course of winding up of a company
Illegal Association
Effects of an Illegal Association
1. Every member is personally liable for all liabilities incurred in the business
2. Members are punishable with fine which may extend upto Rs 1,000 3. Such an association cannot enter into any contract
4. Such an association cannot sue any of its members or any outsider, not even if the association is subsequently registered as a company 5. It cannot be sued by a member or an outsider for any debts due to it
because it cannot contract any debt
6. It cannot be wound up even under the provisions relating to winding up of unregistered companies
7. Where business had been carried on for some years, none of the members can sue for partition
8. The illegality cannot be cured by subsequent reduction in the number of members
9. The profits made are, however, liable to assessment to income-tax
Distinctions between Private & Public Company
Dimensions Private Company Public Company
Minimum number of persons to form the company
Two. Seven
Maximum number of
members Fifty No restriction
Right to transfer
shares Restricted Freely transferable
Right to issue
prospectus Prohibited Allowed for subscription of
shares/debentures Commencement of
business
Immediately after receiving the certificate of
incorporation
After receiving a certificate from the Registrar of
Companies.
Need to hold a
statutory meeting Not needed
Required, and also to file a statutory report with the Registrar.
Appointment of
directors By single resolution Through voting at AGM
Distinctions between Private & Public Company (Contd.)
Dimensions Private Company Public Company
Need to file with Registrar, written consent to act as directors/sign memorandum of association/enter into
contract for their qualification of shares
Not required Required
Retirement of directors Not required by rotation
At least two third of directors must retire by rotation
Increase in the number of directors
Can be increased to any extent without the permission of the
Central Government
If the number is to be more than twelve, approval of the Central Government is necessary Number of members to form
the quorum two Five
Managerial remuneration No restrictions Restrictions
Minimum paid up capital One Lakh Five Lakhs
Conversion of Private Company into a Public Company
• Pass a resolution in the general meeting altering its articles relating to a private company.
• On the date of passing the special resolution, the company ceases to be a private company and becomes a public company.
• Within 30 days of passing the special resolution, the company shall file with the Registrar a copy of the resolution along with the
prospectus/statement in lieu of the prospectus.
• In case of default in filing the resolution and prospectus/statement in lieu of the prospectus, the company and every officer in default shall be liable to a fine of Rs. 5000 for every day of default.
• If the number of members is below 7, steps should be taken to
increase them to at least 7, while the number of directors should be increased to 3.
• The word private is deleted before the word Limited in the name.
Conversion of Public Company into a Private Company
• Pass a special resolution in the general meeting altering its articles so as to include therein the necessary restrictions, limitations and prohibitions and to delete any provision inconsistent with the restrictions.
• The word private is added before the word Limited in the name.
• The approval of the Central Government to the alteration in the articles for converting a public company into a private company should be obtained.
• Within one month of the date of the receipt of the order of approval, a printed copy of the altered articles must be filed with the Registrar.
• Within 30 days of passing the special resolution, the company shall file with the Registrar a printed copy of the resolution.
Formation of a Company
1. Promotion
2. Duties and Liabilities of Promoters
Promoters have a fiduciary relationship with the company. Promoters must make full disclosure of all material facts relating to the formation of the
company. The promoter should not make any secret profit at the expense of the company he promotes.
Liabilities of the promoter are:
• For non-disclosure
• Under the Companies Act, the promoter is liable to the original allotee of shares for the mis-statements contained in the prospectus. Where there are more than one promoter they are jointly and severally liable, and if one of them is sued and pays damages, he is entitled to claim contribution from other(s).
3. Registration
Following documents are required to be submitted to the Registrar of Companies of the State where the registered office of the company is situated:
a) Memorandum of the company b) The Articles, if any
c) The agreement, if any, which the company proposes to enter into with any individual for appointment as its managing or whole-time director or manager.
Formation of a Company
4. Availability of Name
Address of the registered office of the company and particulars regarding directors, manager and secretary, if any, are be submitted to the Registrar along with three names in order of priority, within a period of 30 days from the date of registration of the company.
5. Certificate of Incorporation 6. Floatation
It is obligatory for every public company to take either of the two steps :
• Issue a prospectus, in case the public is invited to subscribe to its capital.
• Submit a statement in lieu of prospectus, in case capital has been arranged privately. It must be done at least 3 days before allotment.
7. Certificate to Commence Business
• Where the company has issued a prospectus.
• Where the company has not issued a prospectus.
If any public company having share capital commences business or exercises borrowing power without obtaining the certificate to
commence business, then every person at fault shall be liable to a fine of Rs. 5000 for every day of default.
Formation of a Company
8. Pre-incorporation and Provisional Contracts
In case of a public company, under the following situations contracts may be entered into:
• Contracts before incorporation.
• Contracts after incorporation, but before obtaining the certificate to commence business.
• Contracts after obtaining the certificate to commence business.
Those contracts which are entered into by a public company after incorporation, but before obtaining the certificate to commence business, are called Provisional Contracts.
9. Form of Contracts made by Companies
Competition Act, 2002
Competition law, also known as Anti-trust law is that branch of law which is designed to protect the interest of the consumer by protecting ‘competition’ in the market. This ‘competition’ is protected by protecting trade and commerce from restraints, monopolies, price-fixing, and price discrimination. A perfect competition exists in “a completely efficient market situation characterized by numerous buyers and sellers, a homogenous product, perfect information for all parties, and complete freedom to move in and out of the market.”
• In India the first competition law was enacted in 1969 i.e. Monopolies and Restrictive Trade Practices Act, 1969 ['MRTP Act, 1969'].
• The MRTP Act, 1969 underwent amendments in the 1974, 1980, 1982, 1984, 1986, 1988 and 1991. The amendments introduced in the year 1982 and 1984 were based on the recommendations of the Sachar Committee.
• On the basis of the recommendations of the Raghavan Committee, the Parliament passed December 2002 the Competition Act, 2002.
• The Act was subsequently amended by the Competition (Amendment) Act, 2007 and Competition (Amendment) Act, 2009.
Objectives of Competition Act, 2002
• Prevent practices having adverse effect on competition;
• Promote and sustain competition in the market;
• Protect the interests of consumers; and
• Ensure freedom of trade carried on by participants in markets.
Government by notification may exempt from the competition law
1. Any class of enterprises in the interest of national security/public interest.
2. Any practice/agreement arising out of international treaty/agreement
3. Any enterprise performing a sovereign function on behalf of government
Competition Act, 2002
Four Compartments
1. Anti-competition Agreement
Agreement between rivals or competitors is termed as horizontal agreements. The most malicious form of an anti-competitive agreement is cartelization. When rivals or competitors agree to fix prices or share consumer or do both, the agreement termed as cartel. Besides horizontal agreements, there can be anti- competitive agreements between producers and suppliers or between producers and distributors. These are referred to as vertical agreements. Vertical agreements too can undermine competition in the market. The kind of agreements which would be considered to have an 'appreciable adverse effect on competition' would be those agreements which –
– Directly or indirectly determine sale or purchase prices;
– Limits or control production, supply, markets, technical developments, investments or provision of services;
– Share the market or source of production or provision of services by allocation of inter-alia geographical area of market, nature of goods or number of customers or any other similar way;
– Directly or indirectly result in bid rigging or collusive bidding.
Competition Act, 2002
2. Abuse of Dominance
A Dominant Position includes a position of strength, enjoyed by an enterprise or group, in relevant market, in India, which enables it to operate independently of competition forces prevailing in the relevant market; or affect its competitors or consumers or the relevant market in its favour.
The terms 'Dominance' is also referred to as market power which is defined as the ability of the firm to raise prices or reduce output or does both
independently of its rivals and consumers. There shall be an abuse of dominant position if an enterprise indulges in the following activities :
– Directly or indirectly imposing discriminatory conditions in the purchase or sale of goods or service, or setting prices in the purchase or sale (including predatory pricing) of goods or services;
– Limiting or restricting the production of goods or provision of services or market therefore; or limiting technical or scientific development relating to goods or services to the prejudice of customers;
– Indulging in practice or practices resulting in the denial of market access;
– Making conclusion of contracts subject to acceptance by other parties of supplementary obligations, which has no connection with the subject of such contract;
– Utilization of the dominant position in one relevant market to enter into, or protect, another relevant market.
Competition Act, 2002
3. Mergers, Amalgamations, Acquisitions and Take-overs
The Competition Act, 2002 prohibits any person or enterprise from entering into a combination which causes or is likely to cause an appreciable adverse effect on competition within the relevant market in India and if such a combination is formed, it shall be void. The Act empowers the Competition Commission of India to regulate the combinations, if they exceed the threshold limits specified in the Act, in terms of assets or turn overs:
a) If assets of Rs.1000 crore or turnover of Rs.3000 crore, in India.
b) If assets of $ 500 million or turnover of $ 1500 million , in India or abroad.
c) If assets of Rs.4000 crore or turnover of Rs.12000 crore, or assets of
$ 2 billion or turnover of $ 6 billion , in India and abroad.
Competition Act, 2002
4. Competition Advocacy
Competition Advocacy is most crucial component of
Competition Law. Central Government/State Government may seek the opinion of CCI on the possible effects of the policy on competition or any other matter. The role of CCI is advisory and the opinion given by the CCI shall not be
binding upon the Central Government/State Government in formulating such a policy. Further the Act provides that the CCI shall take suitable measures for the promotion of
competition advocacy, creating awareness and competition
culture, and imparting training about competition issues.
Horizontal Restraints :
Cartels {Fixing Purchase or Sale Prices (Export Cartels Exempted) }
Bid-rigging (Collusive Tendering)
Sharing Markets by
Territory, Type etc.
Limiting Production, Supply, Technical Development
The Above are “Per Se” Illegal.
Vertical Restraints : Tie-in Arrangements
Exclusive Supplies
(Purchaser restricted from buying goods from any other party).Exclusive Distribution
(Limit/Withhold supply or allocate area/market for sale of goods).
Refusal To Deal
(Restrict persons to whom goods are sold or from whom goods are bought).Resale Price Maintenance
Adjudication by Rule of Reason
Anti - Competition Agreements
The TRIPs Agreement
The Agreement covers five broad issues:
•
How basic principles of the trading system and
other international property agreements should be applied.
•
How to give adequate protection to IPRs.
•
How nations should enforce those rights adequately in their own territories.
•
How to settle disputes on intellectual property between members of the WTO.
•
Special transitional arrangements during the period
when the new system is being introduced.
Copyrights and Related Rights
Copyright is about the right to copy. It is based on the notion that people who create/produce creative work have the right to decide how the fruits of their talent, skill and labour should be reproduced. It thus, provides the economic foundation for sustaining and fostering creativity. Without this protection, nobody would be encouraged to be creative.
In the case of India, the law on copyright protection is contained in the Indian Copyright Act, 1957. Copyright is available for a wide range of expressions, which include literary, dramatic, musical and artistic works.
India’s copyright law fully reflects the Berne Convention on Copyrights, to which India is a party. Additionally, India is party to the Geneva
Convention for the Protection of Rights of Producers of Phonograms and to the Universal Copyright Convention. India is also an active member of the WIPO and UNESCO.
The copyright Act in India has always been well organized ever since its inception, and has been amended a few times to make it stronger.
An amendment in 1984 equipped the law to deal with piracy in videotapes and music.
Copyrights and Related Rights
Another amendment of the Act in 1995, further updated the law and
fulfilled the country’s commitment under the GATT, which required specific mention of a computer programme as a literary work and making other special provisions on infringement of copyrights in computer programmes.
Another addition was in the area of the rights of broadcasters, which was aimed at protecting their programme from misappropriation.
India’s copyright law has been amended and in some ways exceeds the requirements of the TRIPS Agreement, for example, on the period for
copyright protection (which is 60 years in India). The law was amended in December 1999 to grant 25-year term of protection for neighbouring
rights. The term of protection for copyrights and right of performers and producers of phonograms is to be no less than 50 years.
In case of broadcasting organizations, however, the term of protection is to be at least 20 years.
Copyright protection in published works is for the life of the author and continues for 60 years from the beginning of the calendar year next following the year in which the author dies.
Copyrights and Related Rights
▪
In the area of copyright and related rights (i.e. rights of performers, producers of phonograms and broadcasting organizations), the agreement requires compliance with the substantive provisions of the Berne Convention.▪
The TRIPS agreement ensures that computer programmes will be protected as literary works under the Berne Convention andoutlines how databases should be protected.
▪
It also expands international copyright rules to cover rental rights.Authors of computer programmes and producers of sound
recordings must have the right to prohibit the commercial rental of their works to the public. A similar exclusive right applies to films where commercial rental has led to widespread copying, affecting copyright-owners’ potential earnings from their films.
▪
Producers of sound recordings must have the right to prevent the unauthorized reproduction of recordings for a period of 50 years.Several measures have been adopted to strengthen and
streamline the enforcement of copyrights. These include the setting up of a Copyright Enforcement Advisory Council, training programmes for enforcement officers and setting up special policy cells to deal with cases relating to infringement of copyrights.
Trademarks
▪
A trademark is a distinctive mark, motto, device, or implement that amanufacturer stamps, prints, or otherwise affixes to the goods it produces so that they may be identified on the market and their origins made known. Once a trademark is established (under the common law or through registration), the owner is entitled to its exclusive use.
▪
The Trade and Merchandize Marks Act, 1958 provided details forregistration/refusal to register a trademark. The key requirement was that the trademark should be distinctive and could be registered only in relation to specific goods, falling in a specific class of goods. Registration of the trademark was valid for a period of 7 years subject to renewal for a further period.
▪
The Trademarks Act 1999 was put into effect from September 2003, and has made Indian laws fully compliant with the TRIPS obligations. The TRIPSAgreement defines what types of signs must be eligible for protection as
trademarks, and what the minimum rights conferred on their owners must be.
It says that service marks must be protected in the same way as trademarks used for goods. Marks that have become well known in a particular country enjoy additional protection.
▪
WTO members are obliged to publish each trademark either before it isregistered or promptly thereafter so as to allow an opportunity for any other possible claimant to contest the applicant’s claim and get the registration cancelled. Alternatively, the members can allow an opportunity for lodging of objections before granting registration for the trademark. The owner of a registered trademark reserves the exclusive right to prevent all third parties, not having the owner’s consent, from using identical or similar signs for goods or services, which are identical or similar to those in respect of which the
trademark is registered if there is a possibility of confusion.
Trademarks
▪
The term Trade Dress refers to the image and overall appearance of a product, for example, the distinctive décor, menu, layout, and the style of service of a particular restaurant. Basically, trade dress is subject to the same protection as trademarks. In cases involving trade dress infringement cases, a major consideration is whether consumers are likely to be confused by the allegedly infringing use.▪
A Service Mark is similar to a trademark but is used to distinguish the services of one person or company from those of another. For example, each airline has a particular mark or symbol associated with its name.Titles and character names used in radio and television are frequently registered as service marks.
▪
A Certification Mark is used by one or more persons other than theowner to certify the region, materials, mode of manufacture, quality, or accuracy of the owner’s goods or services. When used by members of a cooperative, association, or other organizations, it is referred to as
Collective Mark.
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The term Trade Name is used to indicate part or a business’s entirename, whether the business is a sole proprietorship, a partnership, or a corporation. Generally a trade name is directly related to a business and its goodwill. A trade name may be protected as a trademark if the trade name is the same as the name of the company’s trademarked product, for example, Coca Cola.
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In cyberspace, trademarks are sometimes referred to as Cyber Marks.Patents
A patent is an exclusive right granted for an invention, which is a product or a process that provides a new way of doing something, or offers a new technical solution to a problem. A patent provides protection for the invention to the owner of the patent.
Indian Patents (Amendment) Act, 1999
Patents (Second Amendment) Act, 2002
Indian Patents Act, 1970
Patents (Third Amendment) Ordinance, 2004
Indian Patents Act, 2005
Patents
Before the introduction of the Patents (Third Amendment) Ordinance, 2004, Section 25 of the Patents Act provided for the initiation of
proceedings for opposing the grant of a patent, which could be
launched within four months from the date of advertisement of the acceptance of complete specification. In other words, India followed a system of pre-grant opposition. The grant of patents could be opposed on grounds that included;
▪
The inventions for which the patent has been claimed was publicly known or publicly used,▪
The invention is obvious and does not involve an inventive step,▪
The invention is not patentable under the Patents Act, 1970,▪
The complete specification wrongly mentions the source or geographical origin of biological material used in the invention, and▪
The invention on which the patent is claimed forms part of the traditional knowledge whether in India or elsewhere.Industrial Designs
▪
The Designs Act of 1911 governed industrial designs. Theregistration of a design conferred on the registered proprietor the right to take action against third parties who apply the registered design without license or consent.
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Section 4 of the TRIPs Agreement covers Industrial designs.▪
Under the TRIPS agreement, industrial designs must be protected for at least 10 years. Textile designs have a short life cycle. They have been given special attention, and low cost registration is provided for protection.▪
Owners of protected designs must be able to prevent the manufacture, sale or importation of articles bearing orembodying a design, which is a copy of the protected design.
▪
Obligations envisaged in respect of industrial designs are that independently created designs that are new or original shall be protected.▪
There in an option to exclude from protection, designs that are dictated by technical or functional consideration, as against aesthetic consideration, which constitutes the coverage of industrial designs.Geographical Indications
▪
Geographical indications are defined in Article 22 of the TRIPsAgreement, as “indications, which identify a good as originating in the territory of a member or a region, or locality in the territory, where a given quality, reputation or other characteristics of the good is essentially attributable to its geographical origin”.
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The Geographical Indication of Goods (Registration & Protection) Act, 1999 has since been enacted. Place names are sometimes used to identify a product. Well-known examples include“Champagne”, “Scotch”, “Tequila”, and “Roquefort” cheese.
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Wine and spirits makers are particularly concerned about the use of place-names to identify products, and the TRIPS Agreement contains special provisions for these products. But the issue is also important for other types of goods.▪
The use of a place name to describe a product in this way — a“geographical indication” — usually identifies both its
geographical origin and its characteristics. Therefore, using the place name when the product was made elsewhere or when it does not have the usual characteristics can mislead consumers, and it can lead to unfair competition.
Layout Designs of Integrated Circuits
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The basis for protecting integrated circuit designs (“topographies”) in the TRIPS Agreement is theWashington Treaty on Intellectual Property in Respect of Integrated Circuits, which comes under the WIPO.
▪
The main obligations of the Washington Treaty are also incorporated in the TRIPS Agreement with someenhancement and cover the protection of the intellectual property in respect of lay-out designs that are original in the sense of being the result of their creator's own
intellectual efforts.
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The obligations include national treatment to foreign right holders and a term of protection for 10 years.Protection of Undisclosed Information/Trade Secrets
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Trade secrets consist of customer lists, plans, research and development, pricing information, marketing techniques,production techniques, and generally anything that makes an individual company unique and that would have value to a competitor.
▪
Section 7 of TRIPs Agreement provides in this area that natural and legal persons shall have the possibility of preventinginformation lawfully within their control from being disclosed to, acquired by or used by others without their consent in a manner contrary to honest commercial practices.
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Further, parties are required to protect against unfair commercial uses, undisclosed or other data obtained as a condition ofapproving the marketing of pharmaceutical or of agricultural chemical products.
