Oh my Dear, Forget ur Fear, Let all ur Dreams be Clear, Never put Tear, Please Hear, I want to tell some thing in ur Ear Beauty.. Freshness.. Dreams.. Truth.. Imagination.. Feeling.. Faith.. Trust.. This is beginning of a new year! Like birds, let us, leave behind what we don't need to carry… GRUDGES, SADNESS, PAIN, FEAR and REGRETS Life is beautiful, Enjoy it.
A Bill providing for speedy disposal of commercial cases by commercial divisions of High Courts in the country has been sent to the Select Committee of Parliament because Rajya Sabha members wanted a thorough discussion on it.
Under the new law, the commercial divisions of the High Courts were proposed to take up cases worth Rs 5 crore and above and follow a fast track procedure for the disposal of such cases.
Judges with aptitude in accountancy and commercial matters were proposed to be allocated to this division in various High Courts.
In its recently concluded Winter Session, the lower house of Parliament, the Lok Sabha, passed 'The Commercial Division of High Courts Bill', 2009. The Bill which is based on the recommendations of the 188th Report of the Law Commission of India aims at the adjudication of big ticket commercial disputes, Rs. 5 crores or above, within a timespan of one year.
The Statement of objects and reasons of the bill provides that due to phenomenal changes that have taken place in India in the last decade leading to enormous growth in our commercial and industrial sectors. The policies of the Government have changed radically from 1991, the year in which our economy was opened up to foreign investment in a big way. Privatization, liberalization and globalization have resulted in a big boost to our economy. At the same time, world has become very much competitive. With such rapid increase in our commerce and trade, commercial disputes involving high stakes are increasing. Unless, there is a new and effective mechanism for resolving them speedily and effectively, progress will be retarded. Against the aforementioned background, the Law Commission of India in its 188th Report on "Proposals for Constitution of Hi-Tech Fast Track Commercial Division in High Courts" has recommended the constitution of Commercial Division in each High Court. The Law Commission had examined the feasibility of 'Commercial Division' in the High Courts in India on the model of the Commercial Division in the High Courts of UK, USA and certain other countries. The Law Commission recommended the creation of 'Commercial Division' with High- Tech facilities in each High Court so that they may handle 'commercial cases' of high threshold value on fast track basis.
At the Joint Conference of Chief Ministers of the States and Chief Justices of the High Courts held on 16th August, 2009 in New Delhi, the 188th Report of the Law Commission of India on constitution of Commercial Division in High Courts was considered and a decision was taken in the said meeting to the effect that Commercial Division be constituted by the High Courts within itself as and when legislation in this regard is enacted by the Parliament.
Constitution of commercial division within a High Court will have many advantages. As of now, pecuniary jurisdiction of Civil Courts for trying civil disputes includingcommercial disputes differs from State to State. In some States, District Courts are having unlimited pecuniary jurisdiction and in some other States, original jurisdiction of higher pecuniary value is vested with the High Court. States where District Courts are having unlimited pecuniary jurisdiction, the orders, judgments or decrees passed by these District Courts are appealable before the High Court. However, upon setting up of Commercial Division in High Courts, all the commercial disputes of high threshold value (Rs.five crore or higher value as may be specified) will be filed in the High Court and would be dealt with by the Commercial Division. It would speed up the disposal of these cases as District Courts would have no jurisdiction in such cases. Commercial Division of High Court would be Court of original jurisdiction for such cases.
The specified value which is the minimum threshold limit can be enhanced by the Central Government in consultation with the concerned High Court and the State Government by notification and different values can be specified for different High Courts. The Commercial Division shall follow Fast Track procedure for the disposal of cases. The said procedure is prescribed in the Bill itself. Power of execution of decree and orders passed by the Commercial Division are also proposed to be vested in the Commercial Division. Fast Track procedure would definitely curtail the time taken in disposal of such cases.
The Commercial Division shall, within thirty days of the conclusion of argument, pronounce judgment and copies thereof shall be issued to all the parties to the dispute through electronic mail or otherwise. A single judge sitting in the Commercial Division may hold one or more case management conferences; fix a time schedule for finalisation of issues, cross-examination of witnesses, filing of written submission and for oral submission; provide for record of evidence in cross-examination and re-examination; appoint commissioner for recording of cross-examination or re-examination provided any order for the purpose of fixing limits which may lead to the disposal of the matter for default or ex parte, shall be passed by a Bench of two Judges.
As of now, applications for setting aside of arbitration awards under section 34 and execution of arbitral award under section 36 of the Arbitration and Conciliation Act, 1996
have to be filed in the 'Court' as defined in clause (e) of sub-section (1) of the said Act. Such court is the Principal Civil Court of original jurisdiction in a District. District Court is normally a principle civil court of original jurisdiction. Similarly appeal under section 37 of the said Act against granting or refusing to grant any measure under section 9; and setting aside or refusing to set aside an arbitral award under section 34 of the said Act lie to the court authorised by law to hear appeals from original decrees of the Court passing the order. Further appeal against order of arbitral tribunal accepting the plea referred to in sub-section (2) or sub-section (3) of section 16; or granting or refusing to grant an interim measure under section 17 lie to a court as defined in clause (e) of sub-section (1) of section 2 of the said Act, i.e. District Court. As per this procedure, a party desirous of delaying an arbitration award has ample scope for adopting delaying tactics by challenging the award or other orders of the arbitral tribunal by starting the litigation right from the District Court level. This defeats the spirit of arbitration which is meant to be a speedy alternate mode of dispute resolution.
To overcome this problem it is proposed that the Commercial Division will also entertain applications under sections 34 of the Arbitration and Conciliation Act, 1996 for setting aside of arbitral award, under section 36 of the said Act for execution of arbitral award and appeal under section 37 where the arbitration relates to or within the scope of the commercial disputes of the specified value. For this purpose, consequential amendments are also proposed in the Arbitration and Conciliation Act, 1996.
An appeal against the order and decree passed by the Commercial Division shall lie before the Supreme Court. The decision to constitute Commercial Division is entirely within the discretion of the High Courts and the State Governments. According to the second proviso to subclause (3) of clause 1 of the Bill, the provisions of the proposed Act can be made applicable to a High Court only in consultation with the concerned Chief Justice and the concerned State Government or State Governments. Thus, sufficient time will be available to assess the likely impact on the workload on the High Courts before the constitution of the Commercial Division and enactment of the legislation will not immediately lead to an increase of workload upon the High Courts.
The proposed definition of 'commercial disputes' covers even IP disputes as is obvious from the following definition in Section 2 of the Bill: (a) "commercial dispute" means a dispute arising out of ordinary transactions of merchants, bankers and traders such as those relating to enforcement and interpretation of mercantile documents, export or import of merchandise, affreightment, carriage of goods, franchising, distribution and licensing agreements, maintenance and consultancy agreements, mercantile agency and mercantile usage, partnership, technology development in software, hardware, networks, internet, website and intellectual property such as trademark, copyright, patent, design, domain names and brands and such other commercial disputes which the Central Government may notify.
Typically the court assuming original jurisdictions in most commercial disputes are the District Courts. For examples the Patents Act, the Trademarks Act and the Copyirght Act all name the District Court as the court of first instance before which a suit for infringement can be filed. Normally law suits cannot be filed directly before a High Court. A High Court is usually confined to hearing appeals from District Court apart from being the only courts in a State to exercise writ jurisdiction. The only exception to this rule are the High Courts of Bombay, Madras, Calcutta, Delhi and Jammu & Kashmir. The first three were set up by the British in the 19th Century through the Indian High Courts Act, 1861. The Delhi High Court was created as recently as 1966 and is definitely the most dynamic of all these High Courts. These 5 High Courts have Original Jurisdiction i.e. lawsuits of a particular valuation can be filed directly in these High Courts provided that the High Court has the territorial jurisdiction to try these cases. Normally the territorial jurisdiction of these High Courts does not extend beyond the boundaries of the cities in which these Courts are based.
Most IP infringement suits are filed in these High Courts which have original jurisdiction as Indian District Courts are woefully underequipped to adjudicate complex high value commercial disputes. This is not to say that the High Courts, with original jurisdiction, are brimming with resources but there is no arguing that these Courts are definitely better off than the District Courts both in terms of resources and manpower.
By setting up dedicated Division Benches in all 21 High Courts across the country this Bill will bestow Original Jurisdiction on all High Courts making them the epicentre of all commercial litigation in indiviudal states. This makes a lot of sense because most businesses are based out of the capital cities of individual states and High Courts are usually situated in these capital cities.
Image of Bombay High Court. Photo Credit: Nichalp. The 'Unbelievable' Procedural Reforms: Apart from consolidating the forums of high value commercial disputes this Bill brings in absolutely unbelievable reform in the procedural laws of India. Currently the only time limit in the Code of Civil Procedure, 1908, is the 30 days time limit to file the written statement (this is the first pleading filed by the defendant in response to the lawsuit filed by the Plaintiff).
This amendment, which was introduced in 2002, signficantly fast-tracked the process because until this statutory time limit was introduced the normal practice for the Defendants was to delay filing a written statement for upto a year after the suit had been filed. With the 30 days time limit being enforced strictly by judges Defendants actually began to file written statements within the 30 days time limit.
The truly revolutionary provision of the Bill however is Section 9(5) which requires the Commercial Division to pronounce a judgment within 30 days of arguments concluding and the matter being reserved for Orders. This is absolutely revolutionary because Indian judges, even judges of the High Court can take upto one year to pronounce Orders on an application for interim injunction in cases of patent infringement. Such a delay is simply outrageous. Having said that it can expected that there will be significant opposition from the judiciary to imposing this 30 day limit.
Another significant change introduced by the Bill is the introduction of case management conference presided by one of the Judges of the Commercial Division, to fix schedules, dates along with time limits for oral arguments.
The above timelines have been drafted with a view to ensure that judgment is pronounced with a year of the law suit being filed.
Given the fact that most IP disputes do not even reach the stage of evidence in the one year period, this Bill is definitely good news The proposed Commercial Division Bill attempts to replicate this success by introducing time limits for every stage of a lawsuit. The Bill also proposes to consolidate the pleadings. Under the current law the only requirement at the stage of filing the suit is to submit a Plaint with some supporting documents. A plaint is limited to facts and involves no law. It basically lays out the cause of action and the relief that is requested from the Court. As per Section 9(2) of the proposed bill the Plaintiff will have to file the following pleadings and evidence along with the Plaint at the very initial stage of the lawsuit:
The Defendant in turn has to reply within 30 days. Additional evidence may be filed at the time of trial. The cross examination of witnesses on their examination in chief affidavits will be outsourced to a Court Commissioner who may either be a retired judge or a lawyer of some standing. This is one recommendation which will go a long way in fast-tracking commercial disputes because cross examination is the most time consuming component of a trial. This is a landmark step taken by the Govt of India.Let us wait and watch that upto what extent our law minister Virappa Moily gets success in passing the bill from Rajya Sabha. I have some reservations over the bill that i will be discussing in subsequent blogs.
The way these changes have been implemented has created a sense of insecurity among the users. This has made many of the sites 350 million users see red. Now Facebook allows its users to choose their level of privacy, by letting them restrict access to either friends, friends of friends or everyone. It's a feature that has helped the site gain many users.
But with the recent change — unless users actively manage their privacy settings themselves — their information like Family and Relationship, Education and Work, and their posts will be made visible to everyone, regardless of what their previous privacy settings were. Online observers believe the revised settings are a tactical move by Facebook to get search engines to index more information from the website, in order to counter growing competition from microblogging sites like Twitter.
Electronic privacy groups are already up in arms against Facebook. Recently, the Electronic Privacy Information Center filed a legal complaint in the US against the social networking site's new privacy settings, claiming the changes violate user expectations, diminish user privacy, and contradict Facebook's own representations.
Lok Sabha, has finally passed the Trademark (Amendment) Bill 2009, on the 18th of December, 2009. The bill will now be sent to the Rajya Sabha - which should hopefully have a more insightful debate on the proposed amendments. Once it is passed by the Rajya Sabha the bill become an Act of Parliament. The Trademark (Amendment) Bill, 2009 was originally introduced into Parliament as the Trademark (Amendment) Bill, 2007. The 2007 bill lapsed because of which it had to be re-introduced in July this year, the Amendment Bill aims to simplify the trademark registration process by enforcing the Madrid Protocolwhich is a cost-effective system for international registration of trademarks, enables nationals of its member countries to obtain trademark registration within 18 months by filing a single application with one fee and one language in their country of origin. This in turn is transmitted to other designated countries.
The Delhi High Court on Tuesday crossed a new milestone in its march to make its proceedings transparent, easier and faster for litigants with the inauguration of the first e-court. As it was already published on IPLex , Fancynew, and E-Courts Blogs regarding the E-Courts in Indian Perspective and its launching schedule. Justice S. Ravindra Bhat inaugurated it. It was a civil court and of the total number of cases listed for hearing for the day, 15 were disposed of in the very first hour. However, lawyers appearing before court had to function manually as the facility was not available to them on the inaugural day. However, as per the project for making the courts of the High Court paperless, they will get connected to the network very soon.
The key feature of the e-court is the ability of lawyers to make paperless digitised submissions, including submissions where references can be hyperlinked to help the judge (or any other reader) instantly access further information on a given matter. The lawyers will have the facility to view the proceedings on their laptops when they are connected to the network.
The courtroom now sports a screen, which as yet only passively displays the causelist. But perhaps as time goes by, one may be able to see what exactly the judge can see as well, in order to have the lawyers and the judge - literally - on the same page. Justice Bhat sat with a laptop with a huge electronic screen on the wall in front of him. The screen had been put up in such a way as to allow the lawyers and the Judge to see the cause list at the same time. The Court Master also had a laptop with him to keep him abreast of the proceedings.According to go the project, the High Court will become paperless with digitisation of all works from filing of cases to delivery of judgments within two years.
According to the The Hindu 15 matters were heard in a matter of just one hour with no paper or files being exchanged. One thing to be careful about is the discomfort caused by staring at the computer screen constantly - the judges may need some extra tips on how to avoid that crick in the neck!
For those of you who want to read more take a look at the e-court presentation that the High Court has put up on its website here.
The E-court committee of Delhi High Court headed by Justice B.D.Ahmad is also considering the possibility of setting up a web portal for broadcasting proceedings of cases that may involve larger public interest.
The court of Justice S Ravindra Bhat looked unlike any other courtroom, with a sleek, wide LCDscreen on the wall and a touchscreen handbook replacing the bulky files as the HC launched its first eco-friendly initiative to go paperless and also bring about speedy justice.
Cumbersome paperwork has been replaced by digitalized files and judges can directly access them on a display monitor. With a target of digitalizing all documents within two years, the court has launched a pilot project which went on smoothly on the first day.
Though 33 matters were listed for the day, around 18 cases were disposed of within the first two hours, which on a routine basis take the entire day. The judge used his special LCD touchscreen to make corrections and his digital signature to certify the copy.
The lawyers gave the concept a thumbs-up, saying there were no glitches during the proceedings. ''We will be able to get rid of our bulky files. Now we have to carry only a USBdevice or CD of our case, which is much easier,'' said Swagat Sharma, a lawyer who appeared in the e-court. Some counsel, however, still preferred to use their paper files, an option given to them for the time being to enable them to adjust to accessing case files from their laptops.
In the next two years, the Court will also create the facility for filing of cases through Internet which will eliminate use of paper in presentation of plaint or petition or appeal and its disposal. All the pleadings, evidence, orders and judgments will be documented and archived on digital media.
The court has already digitalized around 5.5 crore papers pertaining to various cases upto 2007. It is also considering recording the statement of witnesses through video-conferencing to avoid procedural delays.
Since e-filing will require digital authentication of affidavits, vakalatnamas, paper documents with physical
signatures through suitable biometric devices and online payment of court fees, the Court will also require the help of
the Delhi Government for providing e-stamps.Accredited agencies will assist the lawyers to get their filing papers
digitalised on payment of fees, and the rules will also be amended to facilitate it.
Source: The Hindu, 17th December, 2009,The Times of India, 17th December 2009
The Anti-Counterfeiting Trade Agreement is generating growing concern (witness today's release of aprotest letterfrom civil liberties groups from around the world) as many people learn about the secret copyright treaty for the first time.
Yesterday a worldwide coalition of Non-Governmental Organizations, consumers unions and online service providers associations publish an open letter to the European institutions regarding the Anti-Counterfeiting Trade Agreement (ACTA) currently under negotiation. They call on the European Parliament and the EU negotiators to oppose any provision into the multilateral agreement that would undermine the fundamental rights and freedoms of citizens in Europe and across the world.
The first signatories of the open letter include: Consumers International (world federation of 220 consumer groups in 115 countries), EDRi (27 European civil rights and privacy NGOs), the Free Software Foundation(FSF), the Electronic Frontier Foundation (EFF), ASIC (French trade association for web2.0 companies), and civil liberties organizations from all around Europe (9 Member States so far...). The letter is open for signature by other organizations. By December 17th, 2009, European negotiators will submit their position regarding the proposal put forward by the U.S Trade Representative for the Internet chapter of the ACTA. It is now time for the European Union to firmly oppose the dangerous measures secretly being negotiated. They cover not only "three strikes" schemes, but also include Internet service provider's liability that would result in Internet filtering, and dispositions undermining interoperability and usability of digital music and films.
The licensing of intellectual property has become a multi-billion dollar industry. As a result, business owners and individuals are looking for ways to preserve and maximize the value of theirideas inventions, artistic creations and other forms of intellectual property. The term Intellectual Propertyprovides protection for creations of the mind. More specifically, they grant the creators, owner's exclusive rights to artistic and industrial creations. Industrial Intellectual Property rights are protected by Patents, Trademarks, and Designs while Artistic Intellectual Property rights are protected by Copyrights. Your Intellectual Property is all information, resorts you have used and all the products of your work. Intellectual property serves to protect company assets and prevent exploitation by others. Knowledge about intellectual property rights and an understanding of the fundamentals of copyrights, trademarks and patents is vital in today's global market. Many companies, however, fail to take the steps necessary to fully protect their valuable intellectual property assets. According to government agencies, more than $500 billion in legitimate global sales is lost each year to counterfeit goods.
A trademark is a word, phrase, symbol or design, or a combination of words, phrases, symbols or designs, that identifies and distinguishes the source of the goods of one party from those of others. A trademark right lasts indefinitely as long as the owner continues to use the trademark. Periodic renewal is required. A patent for an invention is the grant of a property right to the inventor. The right conferred by the patent grant is, in the language of the statute and of the grant itself, "the right to exclude others from making, using, offering for sale, or selling" the invention or "importing" the invention. What is granted is not the right to make, use, offer for sale, sell or import, but the right to exclude others for 20 years from making, using, offering for sale, selling or importing the invention. A copyright is a form of intellectual property that protects the authors of "original works of authorship" such as literary, dramatic, musical and artistic both written and unwritten, sound recordings and cinematograph films. A copyright protects the form of expression rather than the subject matter of the writing or the ideas. There are several rules for how long a copyright lasts. The duration of copyright protection in India is the life time of the author plus 60 years after his death.
These are some of the important points to be kept in mind by the IP right holders to avoid possible infringement of their rights.
1.Regular monitoring
Right holders should always keep sufficient, historical documents that undoubtedly establish their entitlement to those rights; it provides better chance to prevail in a future dispute over intellectual properties. If they have adequate proof of their rights, government agencies will help them to enforce their rights in accordance with law.
It is also advised that they must record copies of license agreements with administrative bodies, at national and local levels, since in most of the countries these administrative agencies have the authority to protect these rights and confiscate, destroy counterfeit good and also can impose fines.
There is a legal difference if any organization create know-how, copyright works, confidential information or if it creates registrable IP such as patents, designs or trade marks.
2.Having a defined organizational IP policy
A general IP policy, including guidelines regarding IP disclosure and ownership of IP by contractors; pro-forma confidentiality agreements, R&D agreements and collaboration agreements; and appropriate IP ownership clauses in contracts, including employee contracts, manufacturing/sales agreements. You should treat your employees and consultants as potential inventors and keep abreast of their creative input. It is crucial that your company has a contracts which guarantee that all IP they create in connection with their employment or engagement stays in the company and they can not take it or spread it outside of the firm. Both employer and employee must understand the conditions under which they work and create within the company.
Copyright law, however, provides that freelancers and independent contractors automatically retain the copyright to any original work they create in absence of a written agreement to the contrary. Therefore, business owners should make sure that sensitive information wouldn't be any kind of misused.
3.Possible Protection available in Foreign countries
Once company is familiar with available options to protect its intellectual property, it might consider conducting due diligence of potential foreign partners and determine where companies similar to its have experienced intellectual property problems.
If company intends to do, business in foreign countries, company should strongly consider filing its patents and trademarks and its relevant translations with the appropriate government agency in each country where protection is sought.
In some countries, the first party to file an application can prevent others from registering and obtaining legal protections for the same patent or trademark. Most countries do not require that you register your copyrights before enforcing them, but registration with the appropriate government agency is strongly recommended because it provides several benefits such as proof of ownership.
