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Strict view in medical trademark violations 2019-11-11

Since people are now travelling to different countries, medicine with an internationally reputed trademark could be confused with a local brand with a similar sounding name. In pharmaceutical products, it could be harmful if deceptive names are given, the Delhi High Court stated in its judgment in GSK Consumer Healthcare SA vs EG Pharmaceuticals. In this case, GSK sued EG Pharmaceuticals, Zydus Healthcare and Biochem Pharmaceuticals Industries of passing off their nasal decongestion drops with similar-sounding names. GSK’s product, claiming international recognition, is Otrivin. The opposite parties used the name Biotrivin. The names could confuse consumers as both are used for the same complaint. In medicines, a strict view should be taken by courts as they affect human life. Stating so, the court granted an injunction against the opposite companies as GSK is likely to suffer irreparable financial injury. They were restrained from manufacturing, offering for sale, and advertising in any manner whatsoever any products under the mark Biotrivin or any other mark carrying a similar name.

Source: Business Standard, Mumbai edition, November 11th, 2019.

Family affairs not to affect compensation 2019-11-11

When compensation for a road death is computed, the court cannot take into account the arrangement of the shares of property within the family. The court must go by the law in the Motor Vehicles Act, the Supreme Court emphasised in its judgment in Renu Rani vs New India Assurance Co. In this case, a journalist died when his car was hit by a truck coming from the opposite side. The tribunal awarded Rs 13,725,000 to the victim’s wife, daughter and parents. The insurer appealed to the Supreme Court, arguing that the woman had relinquished her share in favour of the other claimants and consequently she was not entitled to compensation. Rejecting the contention, the court asserted that “it is in between the family members to make an arrangement with regard to the family affairs. The grant of compensation in respect of accidental death of a person will not be affected by the family arrangement inasmuch as the compensation as per law has to be awarded by the court in favour of the dependants.”

Source: Business Standard, Mumbai edition, November 11th, 2019.

Prohibition-hit bottlers to get relief 2019-11-11

Manufacturers and suppliers of country liquor in Bihar won a partial victory as the Supreme Court ordered the state government to refund the licence fee for the period when their plants were sealed following the declaration of prohibition in 2016. They had moved the high court which ordered the government to refund the licence fees and the differential amount. The government appealed to the Supreme Court in a batch led by State of Bihar vs Riga Sugar Co. It stated that the high court was right in ordering a refund, in some cases without hearing them. “Since orders of cancellation and suspension are punitive, the licensee should be given an opportunity before the licence is cancelled or suspended,” the court stated in the main case. But in the case of some distilleries, the high court order was overruled.

Source: Business Standard, Mumbai edition, November 11th, 2019.

Presumption of debt in cheque bounce 2019-11-11

The Supreme Court has reiterated that once a cheque is issued, it is presumed that it was for consideration and the holder of the cheque received it in the discharge of existing debt. It is a statutory presumption under the Negotiable Instruments Act. The drawer can rebut it to escape prosecution. In this case, Uttam Ram vs Devinder Singh, an apple grower used ropeways to get his produce to the road. However, the cheque given to the ropeway owner bounced. When a criminal case was filed, the drawer alleged that the amount was higher than due, the cheque book was lost and the number of cartons did not tally. The court did not believe it and asked him to pay double the amount written on the cheque, plus Rs 1 lakh as costs.

Source: Business Standard, Mumbai edition, November 11th, 2019.

Getting ex-director out of company flat 2019-11-11

If a director of a company refuses to move out of the residence provided by it after leaving his post, both civil and criminal proceedings may be instituted against him. Section 630 of the Companies Act deals with penalty and imprisonment for withholding the property. The Supreme Court ruled in the judgment in Hoogly Mills vs State of West Bengal that the pendency of a civil suit in respect of a property would not bar a complaint under Section 630 concerning the same property. In this case, a director refused to vacate the flat given to him by the company. The company signed an agreement to buy the flat, but the director claimed that he had a claim to it because an heir to the owners had agreed to sell it to him. On this claim, a civil suit was pending. The sessions court proceeded with the criminal complaint. The Calcutta High Court quashed it. Therefore, the company moved the Supreme Court. It set aside the high court judgment, observing that “given that the primary object of Section 630 is to provide a speedy mechanism for restoration of wrongfully withheld property to companies, we find that the provision should be construed as far as possible to facilitate a remedy in favour of the aggrieved company and to prevent the wrongful retention of the property for an unduly long period by the accused person”.

Source: Business Standard, Mumbai edition, November 11th, 2019.

Warring public entities sent to new forum 2019-11-11

Commercial litigation among central public sector enterprises (CPSEs) and various government departments/organisations see no end. This was evident last week when the Supreme Court asked MTNL, Canara Bank and its subsidiary Canfina to take their 25-year-old dispute to the Administrative Mechanism for Resolution of CPSEs Disputes (AMRCD). Two months ago, the court had referred them to arbitration, ordering that Canfina must be impleaded in the process on the principle of “group of companies”. Since the disputes involved government entities, MTNL now moved the court in an attempt to resolve the issues through the newly contrived AMRCD. Canara Bank opposed the move, arguing that it would amount to a review of the court’s earlier order. However, the court wanted to try the new method suggested by MTNL. “If any settlement is brought about through such an attempt, it will not only save public funds but will ensure the true spirit of coordination amongst different public bodies,” the court observed. It added if the disputes are not settled by January 15, they will go back to the arbitration table. Disputes between different arms of the government have been sore points for decades, which even the Supreme Court could not solve despite repeated efforts. The objective of the AMRCD is to bring about a time-bound settlement of disputes between government entities.

Source: Business Standard, Mumbai edition, November 11th, 2019.

Hi-tech solution to stop illegal constructions 2019-11-04

To tackle unauthorised constructions, the Supreme Court has asked municipal corporations in Maharashtra, where the population is 5 million or more, to get geomapping and geophotography done not only of the municipal areas but also of areas 10 km outside their boundaries. This must be done in one year by satellite, drones or vehicles. Once it is done, the court thinks it would be easy to control illegal constructions. In a series of orders, the court also empowered the authorities to demolish any illegal construction after a short notice. The order was passed in an appeal case, Municipal Corporation vs Sunbeam Developers. Taking a tough stand, the judgment declared that “Rule of Law envisages that illegal constructions must be demolished and there can be no sympathy towards those who violate law”.

Source: Business Standard, Mumbai edition, November 4th, 2019.

Discharge vouchers signed under duress 2019-11-04

Insurance companies that demand discharge vouchers from policyholders when a claim is made often argue that the amount mentioned there has been paid and there should be no further claim. The insured person can still ask for a higher claim showing the actual losses. This rule was asserted by the Delhi High Court in its judgment in United India Insurance vs Shreedhar Milk Food. In this case, a fire destroyed milk powder kept in a godown. The milk firm gave a discharge voucher for the release of over Rs 8.8 crore towards the ‘final settlement’. Later the firm demanded more compensation. The insurance company relied upon the voucher to argue that the amount due has been paid and the firm received it “without any protest and demur, and thus was not entitled to any further amount”. The firm moved the arbitrator but he gave an award against it. The award did not touch upon the “pre-printed” discharge voucher which was a key issue as the firm had pleaded that it was given under duress. Therefore, the award was challenged in the high court. It set aside the award, citing a circular of the Insurance Regulatory and Development Authority which stated: “It should be clearly understood that execution of such vouchers does not foreclose the rights of the policyholder to seek higher compensation before any judicial forum”. The judgment pointed out that the arbitrator had ignored this vital evidence and, therefore, the court was entitled to interfere in the award as an exceptional case and set it aside.

Source: Business Standard, Mumbai edition, November 4th, 2019.

Summary orders in commercial suits 2019-11-04

The Delhi High Court last week pointed out that in commercial disputes, it can grant a summary judgment where it considers that the defendant in a suit has no real prospects of winning and there is no other compelling reason why the claim should not be disposed of without recording oral evidence. Unlike ordinary suits, courts need not hold a trial in commercial suits, the judgment in Su-Kam Power Systems vs Kunwer Sachdev asserted. The judgment stated that Su-Kam is the exclusive registered proprietor of the trademarks of the same name with respect to inverters. The company, through its resolution professional, sought a summary judgment praying for a permanent injunction against the opposite party for trademark violations. It was granted.

Source: Business Standard, Mumbai edition, November 4th, 2019.

Insurer can’t pass on liability to father-in-law 2019-11-04

The insurance company cannot escape its liability in road deaths if the dependents of a deceased man are taken care of by his father-in-law. Royal Sundaram General Insurance argued in a case before the Delhi High Court that the father-in-law had continued the business of the deceased person and, therefore, no compensation need be paid as ordered by the tribunal. It argued that there was no loss of income or dependency. The high court rejected the contention outright, pointing out that the father-in-law stepped in to continue the business to maintain the widow and children. It is a temporary arrangement to meet the exigencies of the situation. The dependency was on the deceased person, not father-in-law, the judgment clarified.

Source: Business Standard, Mumbai edition, November 4th, 2019.

Orders without providing reasons 2019-11-04

The Supreme Court has often chastised high courts and tribunals for passing summary orders without giving the reasons for arriving at the conclusions. It would seem that the practice is common among quasi-judicial bodies. So much so that the Intellectual Property Attorneys Association recently moved the Delhi High Court alleging that the Registrar of Trade Marks is passing “non-speaking” orders without writing the grounds for rejecting applications for registration. This, they argued, violated Section 18(5) of the Trade Marks Act. This provision mandates that “in case of a refusal or conditional acceptance of an application, the Registrar shall record in writing the grounds for such refusal or conditional acceptance”. The attorneys made the Controller General of Patents, Designs & Trade Marks as the respondent and sought the assistance of the high court to enforce the rule. They also pointed out that Rule 36 of the Trade Marks Rules is contrary to the mandate of Section 18(5). This rule provided for sending the copy of the order to the applicant without the grounds for refusal. He might get it only if he wants to appeal against the order within 30 days. The high court ruled that this provision was “arbitrary, unreasonable and inconsistent with the mandatory provision of the statute”. It asserted that Section 18(5) shall prevail over Rule 36.

Source: Business Standard, Mumbai edition, November 4th, 2019.

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