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RECENT JUDGEMENTS AFFECTING THE ARBITRATION REGIME September 2019

legalThe Madras High Court in 2016 held that mere designation of seat by parties does not oust the jurisdiction of other courts. However within few days, the Apex Court overruled the Madras High Court judgment stating that when parties have agreed to ‘venue’ of arbitration no other court will have jurisdiction. With this background, we are delighted to share our newsletter on arbitration covering the recent judgements affecting the arbitration regime of India.

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Evolving Laws to protect Intellectual Property Rights August 2019

legalIn this case Dish TV India Ltd. (plaintiff) had filed a suit for permanent injunction restraining Prasar Bharti (defendant) from infringing the trade mark ‘Dish TV’ by adopting the name/ mark ‘Free Dish’. The plaintiff contended that the word ‘Dish’ was first appropriated by them in the year 2003 and is a key mark which is being used to offer several services such as dish+, Dish TruDH+, dish dvr etc. and also as a part of its corporate name and website. The plaintiff also argued that the defendant renamed its Free to Air DTH service ‘DD Direct+’ to ‘Free Dish’, in May 2014, to capitalize on the goodwill of the plaintiff and had mala fide intent to do so. Prasar Bharti contended that there is no similarity between ‘DD Free Dish’ & ‘Dish TV’, whether phonetic or visual, therefore the possibility of consumers being misled does not arise. Further, it was also argued that confusion will not arise as there is a difference in the services and subscriber base of the plaintiff and the defendant. The defendant also argued that the word ‘Dish’ is generic or common to the trade and no one can claim exclusive right over it because it is devoid of any distinctive character. The Delhi High Court rejected the arguments of the defendant and held it to be a prima facie case of infringement. It was also held that as the defendant was providing services without using the word ‘Dish’ till 2014, it could not be argued that ‘Dish’ was being used as an indicative of the kind or characteristic of services being rendered by the defendant. It was also observed that the word ‘Dish’ was not generic to or common to the trade of DTH service. Even though the defendant’s mark was using the word ‘DD’ to denote Doordarshan, the Court observed that it could not be said that the consumers may not get confused that there may be some business structure between the defendant and plaintiff. An interim order was passed restraining the defendant from using the mark ‘DD Free Dish’ or any other mark incorporating the word ‘Dish’ in it till the pendency of the suit. The defendant was also granted a time of three months’ time to inform its subscribers of the new name for the purpose of not causing any confusion.

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• Copyright protection given to “cinematographic films” is at par with other original works. August 2019

legalYash Raj Films Pvt. Ltd. (plaintiff) filed a copyright infringement case against Sri Sai Ganesh Productions & Ors. (defendant) alleging that the Telugu movie, Jabardasht, was a blatant copy of the plaintiff’s movie, Band Baja Baaraat, and there were substantial and material similarities in terms of theme, concept, plot, character, sketches, story, script, form and expression etc. The plaintiff sought for permanent injunction restraining defendants from violating and infringing their copyrights in BBB by releasing the impugned movie and dubbing it in any other language including Tamil. Justice Manmohan of the Delhi High Court, while passing his order in favour of the plaintiff, relied on MRF Limited v. Metro Tyres Ltd. where the Court held that copyright subsists in the ‘cinematographic film’ independent from other underlying works that come together to constitute it and that there is a requirement of originality to exist in ‘cinematographic films’ which can be read into Section 13(1)(b) of the Copyright Act, 1957 through Sections 13(3)(a) and 2(d) of the said Act even though it has not been explicitly mentioned. It was also held that the expression “to make a copy of the film” in Section 14(d)(i) of the said Act does not mean just to make a physical copy of the film by process of duplication. Further, as the scope of protection of films was at par with other original works, the Court would apply the test of originality laid down in the landmark case of R.G. Anand v. Deluxe Films, (1978) 4 SCC 118, to compare the ‘substance, foundation and kernel’ of the two films and see if an average viewer would get an unmistakable impression that one work was a copy of the other. In the present case, the Court found that the defendant had copied the fundamental, essential & distinctive features along with expression of BBB and had thereby infringed plaintiff’s copyright.

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Does copyright exist in a ‘title’ of a literary work in isolation? August 2019

legalA movie titled ‘Kolaiyuthir Kalam’ which roughly translates to ‘Season of Death/Murders’ starring Nayanthara was in dispute not because of its storyline but because of its title. The defendants were set to release their movie titled ‘Kolaiyuthir Kalam’, which was the tile of a novel authored by a famous Tamil writer, Mr. S. Rangarajan, who had coined this term specifically for the novel. The plaintiff alleged that since the title of the novel was not an ordinary word or not used in common parlance, thus bore a distinctive character and is therefore a ‘literary work’ under Copyright Act, 1957. The plaintiff had copyright over the title by virtue of an agreement with the author, where the author had assigned copyright in the novel to the plaintiff. Thus, by using this term for their movie, the defendants had infringed the copyright of the plaintiff. The defendants argued that definition of ‘literary works’ under the said Act does not include ‘titles’ and also there are no rights that exist in the title, which is just used to identify the literary work. The Madras High Court relied on the Supreme Court case of Krishika Lulla and others v. Shyam Vithalrao Devkatta and another and held that copyright does not exist in the title of a literary work and that title of a common name cannot be protected under the Copyright Act, 1957.

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E-commerce platforms restrained from enabling sale of products of ‘direct selling’ companies without their consent August 2019

legalM/s Amway India Enterprises Pvt. Ltd., M/s Modicare Ltd. and M/s Oriflame India Pvt. Ltd. (plaintiffs) filed a batch of seven suits against various e-commerce platforms, such as Flipkart, Amazon etc. and sellers on the said platforms (defendants) for restraining the defendants from selling their products on these platforms without the consent of the plaintiffs. The plaintiffs contended that its original products were being purchased from open market by unauthorized means or via leakages in the plaintiff’s supply chains, and then being sold on e-commerce platforms at cheaper prices and in tampered and impaired state. It was also contended that the e-commerce platforms did not give information about the real sellers of these products which made it difficult for consumers to resolve their disputes causing reputational harm to the plaintiffs. In the present case, the Delhi High Court held that a case was made under Section 30(4) of the Trade Marks Act, 1999 and the defendants would be liable for trademark infringement as even if the re-sale was of a genuine product purchased directly from the plaintiff’s distribution network, the product was being changed or impaired after the first sale as the seal was being tampered and the return and refund policy of the plaintiff was not being passed on to the customers. The Court also found that the defendants were in violation of the Direct Selling Guidelines, 2016, as they were selling the original products on e-commerce platforms without the consent of the plaintiffs. It was also observed that e-commerce platforms were not passive non-interfering platforms but provided value added services to both the consumers and the users. Thus, e-commerce platforms to be protected under the safe harbour provision under Section 79 of the Information Technology Act, 2000, would have to comply with the requirement of carrying out due diligence.

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Media Law & Fashion Law in India June 2019

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Intellectual property law and the law governing the media are rapidly evolving while becoming increasingly complex. In the age of rapid social media advancement, protection of intellectual property has become a major concern for not only the owners of these rights but also for the lawmakers; and the Indian Courts are proactively working to safeguard the rights of the individuals. This issue of our newsletter mainly focuses on the recent developments in the media law and fashion law in India.

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Recent judgement affecting the arbitration regime April 2019

legalRecently, the Bombay High Court ruled that stamping of document is not necessary for the appointment of arbitrator. However, within few days post this judgment, the Apex Court overruled it and held that stamping of document is required for the appointment of arbitrator. Such uncertainty of the law discourages the parties to make India as the seat of arbitration. With this background, we are delighted to share our newsletter on arbitration covering the recent judgments affecting the arbitration regime of the country.

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Intellectual Property Rights: What’s in a name? March 2019

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The beginning of this year has seen major developments in the IP Sector. From the Cinematograph (Amendment) Bill, 2019, which has introduced penal provisions for unauthorised camcording and duplication of films, to some noteworthy rulings to further strengthen protection of IP rights; This newsletter aims to bring to you the latest updates in the IP segment.

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The Insolvency and Bankruptcy Code at work February 2019

legalIn 2016, India embarked on its journey of building a dedicated framework for resolving cases involving insolvency and bankruptcy, and in no time the National Company Law Tribunals (NCLTs) started approving revival of bad loans. Today, we bring to you some reformative judgments of the last month that will be paving the road ahead.

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A paradigm shift - Intellectual Property Rights in India January 2019

legalLast year was driven by introducing new technologies in the IPR circuit in India, the most significant of them all being the proposal of the Controller General of Patents, Designs and Trademarks to Introduce AI, Blockchain, Internet of Things and other technologies in IP Enforcement. It also paved the way for the Union Government approving a proposal to accede to the WIPO Copyright Treaty, 1996 (‘WCT’) and the WIPO Performance and Phonograms Treaty, 1996 (‘WPPT’) for setting up a framework for the protection of authors’ rights in the digital environment mandatory . An amendment was also brought this year by the government, amending the Intellectual Property Rights (Imported Goods) Enforcement Rules, 2007 which repudiated the power the custom officers to seize imports on the basis of mere complaints of patent infringement. 
This newsletter aims to include the latest updates in the IP segment through judicial pronouncements made in the year of 2018.

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Arbitration - Institution Rules Update January 2019

legalThe 2013 Hong Kong rules have been revised to add provisions for use of technology to benefit the process of arbitration. The process for revision of the Rules began in August 2017 and after a year of consultation with the interested groups and users in Hong Kong, a new set of rules have come into force on 1 November 2018 to administer arbitral process, namely, HKIAC Administered Arbitration Rules (2018). The major changes introduced are as follows:

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Arbitration - Institution Rules Update January 2019

legalJapan Commercial Arbitration Association announced issuance of three sets of Arbitration Rules for public comments on 16th November, 2018. The evident motive for introduction of these new sets of rules is to change the offering of a unique arbitration model which is attractive to the wide range of businesses. These new sets of rules will come into force on 1 January 2019. The new set of rules are as follows:

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Settlement of disputes in Draft Withdrawal Agreement on Brexit January 2019

legalThe Draft Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community unveiled on the 14th of November, 2018, lays down a new mechanism for settlement of disputes through arbitration arising between the European Union and United Kingdom (Article 170 to 181 of the agreement). For the purpose of arbitration, following provisions have been laid down under the agreement:

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Issuance of New Rules of the Court of International Commercial Arbitration January 2019

legalIn Romania, the Rules of the Court of International Commercial Arbitration which are linked with the Chamber of Commerce and Industry of Romania (hereinafter “C-C”) have been revised in order to provide an efficient and effective way to settle a dispute through arbitration. The new rules lay down certain provisions for an efficient mechanism in respect of time and costs of the arbitration process. Some of them are stated below:

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Global International Arbitration Update December 2018

legalIn arbitration, the main elements are enquiry, hearing of parties, examination of evidence and adjudication of the dispute. Enforcement of an arbitral award is essential. Once the award is given by the Arbitral Tribunal, a party is required to enforce the award in the enforcement court. The courts across the globe have denied enforcement on various grounds. Therefore, the parties dealing with international business houses shall observe the trend followed by various courts across jurisdictions with regard to the enforcement of arbitral award. This newsletter covers the latest arbitration related judgments of different courts in various jurisdictions.

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Domestic Judgments affecting Arbitration regime of India November 2018

legalIf one finds it challenging to enforce a commercial contract, then rest of the aspect of ease of doing business becomes significantly less relevant. Enforcement of contract and pendency of cases is one area that continues to be a concern. One aspect that could help alleviate concerns with commercial contracts, as well as help reduce the burden on the court and consequently pendency, is through Alternate Dispute Resolution (ADR). Since the government of India is committed to improve its ranking in ease of doing business, it has made major strides towards greater efficiency and efficacy in resolving commercial disputes, including major legislative measures on promoting ADR. With top class arbitration, many of the concerns regarding enforcement and delays in the court would dissipate.

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Strengthening IPR policy to foster innovation October 2018

legalIndia has introduced various reforms in the recent years ensuring credibility with the potential investors and strategic partners for encouraging them to invest in India. Some of these initiatives are the introduction of Startups Intellectual Property Protection (SIPP) providing 50% fee concession in patent and trademark to startups, Reforms for automation and digitalization of the whole IP registration process, reforms for expediting the process of prosecution in IP matters and so on.The Indian judiciary has made robust progress for safeguarding the rights of innovators and bringing this regime in consonance to the international standards. 

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Rethinking legislative framework for settling disputes September 2018

legalThe Arbitration & Conciliation (Amendment) Act, 2015, did not address certain key issues such as importance of institutional arbitrations at a time when internationally, institutions such as ICC, LCIA, SIAC and HKIAC were playing key roles in resolution of disputes through arbitration. 

A ghost of uncertainty has always revolved around the arbitration regime of the country. The 2015 Amendment also brought uncertainty with regard to its applicability (retrospective or prospective). However, the Indian government has recently approved the Draft of Arbitration and Conciliation (Amendment) Bill, 2018 assenting to bring further amendments to the Arbitration and Conciliation (Amendment) Act, 2015 by removing some practical difficulties from the Act. Moreover, New Delhi International Arbitration Centre Bill, 2018 has been introduced in Lok Sabha to establish an autonomous and independent arbitral institution for better management of arbitration in India. These moves by the Indian government are in consonance with its commitment to improve India’s ranking in the area of ease of doing business by promoting arbitration and alternative dispute resolutions as a mean for resolving disputes.

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Incorporating more stringent compliances June 2018

legalCorporate Law governs the rights, relations and conduct of persons, companies, organizations and businesses and regulates the interaction between corporations, investors, shareholders, directors, employees, creditors and other stakeholders such as consumers, community and environment. It is an important legal framework to ensure the smooth functioning of corporate bodies which is supported by umpteen regulations released by SEBI. SEBI (Listing Obligation and Disclosure Requirements) Regulations, 2015 is one such framework that serves to consolidate and streamline the provisions of various listing agreements in operation for different segments of the capital market.

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Protecting Intangible Creations May 2018

legalThis newsletter aims to include the latest updates in the IP segment and recent statutory developments in this regard for creating awareness among all sections of the society about the economic, social and cultural benefits of IPR. The protection of such property can only be provided through well-defined laws which balance the interests of the public with those of the owners. This would commercialize the scope of such brands through digitization of government filings thereby relaxing the process of registration. The strengthening of the enforcement and adjudicatory mechanisms would require the involvement of various agencies coordinating with the IP owners for avoiding practices of piracy and infringement of rights. The judiciary in this regard has made robust progress for safeguarding the rights of innovators and bringing this regime in consonance with the international standards which would be highlighted in the following segment:

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The Bankruptcy Code is Evolving April 2018

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In May 2016, India enacted the Insolvency and bankruptcy code, as a major legal reform. The new framework is the time bound process in which cases are admitted and are supposed to be resolved within 270 days; if not, companies go into liquidation. A fundamental feature of insolvency law is creditor protection, which involves altering the existing relationship between a company and its creditors and giving creditors, the front seat. This is positive from the perspective of improving the credit culture of the country which will lead to better availability of credit and eventually help in improving the ease of doing business. 

In the short period of time that the insolvency code has been in force, both the NCLT and the NCLAT have adapted admirably to new legal concepts and strict procedural timelines. Still, a year after its introduction, the code remains a work in progress. The strengthening of enforcement and adjudicatory mechanism would require the involvement of various agencies coordinating with the adjudicatory authorities for speeding up the process of liquidation for timely claim fulfillment of the creditors. The tribunal in this regard has made robust progress for safeguarding the rights of the creditors and interpreting the legislative aspect.

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Competition Law Framework February 2018

legalThe Competition Commission of India (‘CCI’) is a market regulator, it does not decide between parties but rather takes note of an anti-competitive conduct which may be brought to its notice by any person or enterprise by way of filing information. The objective of the Competition Act 2002, (‘Act’) is to prevent practices having adverse effect on the competition, to promote and sustain competition in markets, to protect the interests of the consumers and to ensure the freedom of trade carried on by other participants in markets.
The Ministry of Corporate Affairs (‘MCA’) has brought about prospective changes by statutorily mandating National Company Law Appellate Tribunal (‘NCLAT’) as the appellate tribunal for appeals arising from the CCI, instead of the Competition Appellate Tribunal. The merger control has subsided concerns pertaining to significant delays in the M&A regime, which also observed removal of the 30-days filing deadline for notifiable transaction thus doing away with unnecessary penalties for delayed filings. 
The Commission has also issued guidelines on non-compete prescribing assessment of non-compete restriction in the M&A transactions. The carving out for the state-owned enterprises is not in consonance with other major competition jurisdictions and results in creation of ownership-based divide, distorting the level playing field amongst private companies and state-owned enterprises. Provided that CCI has the ability to levy highest economic penalties, the application of turnover remained contested until Supreme Court settled the issue in relation to interpreting turnovers as ‘relevant turnover’ thereby adopting the principle of proportionality. The requirement for formulating penalty guidelines still subsists as concern for guiding industries. 
Further, to contribute the ease of doing business in India, the Government shall set up benches of the Commission to speedily resolve the issues pertaining to this framework. This newsletter aims at such highlights of the Commission wherein issues revolving around abuse of dominance, cartelization, anti-competitive agreements were dealt in consonance to the international standards of the Competition legislations, which would be pondered upon in the following segment:

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Intellectual Property: January 2018

legalOver the years, stringent IPR protection laws have encouraged tremendous foreign investments and efforts in the areas of applied science whereby we overcome numerous challenges in various fields. In the world economy it is imperative that a universal protection is accorded for which we have robust international system of treaty instruments and enforcement organizations.
This newsletter aims to proffer the latest updates in the IP segment and recent statutory developments for creating awareness about the economic, social and cultural benefits of IPR. The protection of such property can only be provided through well-defined laws which balance the interests of the public with those of owners. This would commercialize the scope of such brands through digitization of government filings thereby reducing the process of registration. The system provides adequate incentives for entrepreneurs to innovate but there is requirement of strict implementation which would help in innovation of strengthened economy. The judiciary in this regard has made robust progress for safeguarding the rights of innovators and bringing this regime in consonance to the international standards which would be highlighted in the following segment:

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Insolvency & Bankruptcy Code November 2017

legalThe Insolvency and Bankruptcy Code was enacted for the purpose of unifying the laws pertaining to liquidation proceedings and bankruptcy. The term ‘insolvency’ refers to the ‘de facto’ situation whereas ‘bankruptcy’ refers to the ‘de jure’ situation of being insolvent. The Code grants specific rights to the creditor which can be exercised against the insolvent entity. The new Code provides for an Insolvency resolution process which is initiated on an application by the debtors or the creditors to the tribunal, an interim Insolvency Professional is appointed for the management of the corporate debtor and to constitute the creditors committee, followed my making and approval of the resolution plan, the organisation is then liquidated. In India, lending institutions were sceptical about return of the credit which makes borrowing difficult which necessitated the enactment of such legislation safeguarding the vested interests of the creditors. Although there still persists scope for indulging prevalent provisions governing the process which could be initiated by forming more Information Utilities, as National e-Governance Services Ltd. (NeSL) is the only entity to have received the in-principle authorization for establishing an Information utility. The strengthening of enforcement and adjudicatory mechanisms would require the involvement of various agencies coordinating with the Adjudicating authorities for speeding up the process of liquidation for timely claim fulfillment of the creditors. This newsletter through judicial pronouncements on subject matters of initiation of resolution process, approval plans and the time period required to liquidate the company aims to clarify the legislative reforms in manner of claiming the unpaid debts. The Tribunal in this regard has made robust progress for safeguarding the rights of creditors and interpreting the legislative aspect which would be highlighted in the following segment:

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Arbitration and Conciliation (Amendment) Act, 2015 October 2017

legalThe Arbitration and Conciliation (Amendment) Act, 2015 had brought about prudent modifications in manner of appointment of an Arbitrator, reduced timelines for resolving commercial disputes, infrastructure development, promotion of institutionalized arbitration etc. The recognition of the MCIA as an appointing institution by the Supreme Court lends credibility to the relatively new institution and will hopefully encourage both domestic and foreign users to use the facilities and rules of the MCIA in their commercial arrangements. . The amendments deal with restrictions on Indian court's jurisdiction over foreign seated arbitrations and various other recommendations made in the Law Commission Report. The changes have also brought the Indian arbitration regime closer to the international standards and to the UNCITRAL Model Law on International Commercial Arbitration. The provision pertaining to fast-track arbitrations (Section 29A) is though included in the Act but there still persists the requirement for inclusion of emergency arbitrations. Further, issue such as appealability of the decision of the Court or such arbitral institution where it decides that the arbitrator should not be appointed still requires clarification. Though, the Amendment makes declaration by the Arbitrator about his independence and impartiality more realistic as compared to bare formality under the previous regime. Further it could be opined that the present amendments certainly brought significant changes in manner of reducing the interference of the Court in the Arbitration proceedings that has been the consistent effort of the legislature since the enactment of the 1996 Act. This Newsletter aims to include the latest updates in the Arbitration and Conciliation segment and recent statutory developments in this regard for creating awareness.

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Intellectual Property Rights (IPR) September 2017

legalThe Intellectual Property Rights (IPR) provides for regulatory framework to safeguard the interest of the entities indulged in creativity and innovation for which it has been bifurcated under protections such as- patents for inventions, copyrights for literary works, trademarks and trade secrets. The Government in pursuance of this shift announced IPR policy which would be in compliance with the global norms ensuring credibility with the potential investors and strategic partners for encouraging them to invest in India. This newsletter aims to include the latest updates in the IP segment and recent statutory developments in this regard for creating awareness among all sections of the society about the economic, social and cultural benefits of IPR. The protection of such property can only be provided through well-defined laws which balance the interests of the public with those of owners. This would commercialize the scope of such brands through digitization of government filings thereby reducing the process of registration. The strengthening of enforcement and adjudicatory mechanisms would require the involvement of various agencies coordinating with the IP owners for avoiding such practices of piracy and infringement if rights. The judiciary in this regard has made robust progress for safeguarding the rights of innovators and bringing this regime in consonance to the international standards. 

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