[No.200]

Supreme Court

• Udai Singh Dagar and Ors. Vs. Union of India (UOI) and Ors.

Respondent State of Maharashtra issued a notification in terms of Section 30 of the Central Act specifying minor veterinary services to be rendered by the Veterinary Science Certificate or Diploma holders in the Government Service or in Semi-Government organizations thus curtailing the right of certificate or diploma holders to practice only minor veterinary services. Appellants filed writ petition challenging same on ground that veterinary practitioners who were possessing 'diploma in veterinary science' or 'certificate in veterinary science' which were recognized by the State of Maharashtra and some other States they could not have been divested of their right to practice by reason of the Central Act, as they had a fundamental right in terms of Article 19(1)(g) of the Constitution to carry on veterinary practice or continue to be in the service of the State by virtue of their possessing requisite qualification to practice and therefore, any restriction placed on such rights should not only be a reasonable one but also should be in public interest. High Court however dismissed writ petition. Hence, present appeal. Whether respondent State can pass a legislation restricting rights of appellants? Held, in the matter of laying down of qualification by a statute, the restriction imposed as envisaged under second part of Clause (6) of Article 19 of the Constitution of India must be construed being in consonance with the interest of the general public. The provisions contained in Section 30 of the Central Act constitute a reasonable restriction within the meaning of the first part of Article 19(6) of the Constitution of India and the fundamental rights under Article 19(1)(g) thereof. Therefore, appeal dismissed.

• Commnr. of Customs (Port), Chennai V. Toyota Kirloskar Motor Pvt. Ltd.

Respondent-company entered into agreement with Japan based Toyota Motor Corporation for import of capital goods and parts for manufacture of automobile in India. Under the agreements entered into by and between the respondent and the said Toyota Motor Corporation, royalty and know-how fees were to be paid. Appellant Revenue relying on decision in Collector of Customs (Preventive), Ahmedabad v. Essar Gujarat Ltd., Surat held that such payments were to be added to the invoice value of the goods so as to arrive at a proper transaction value, in terms of Rule 9(1)(c) of the Customs Valuation (Determination of Price of Imported Goods) Rules, 1988 as payments of royalty, have a direct nexus to the imported goods as the same go into the manufacture of the licensed vehicles and spare parts. Respondent challenged same stating that only the costs which were required to be incurred by the importer before importation of the capital goods had to be taken into consideration for determination of the transactional value of the imported goods. An appeal preferred there against by the respondent before the Commissioner of Customs was dismissed but on further appeal CEGAT allowed appeal preferred by respondent company. Hence, present appeal. Whether charges at the pre-importation stage, would have to be taken into consideration towards computation of transaction value? Held, the observations made in Essar Gujarat Limited must be understood in the factual matrix involved therein. Even in Essar Gujarat Limited a clear distinction has been made between the charges required to be made for pre-importation and post-importation. All charges levied before the capital goods were imported were held to be considered for the purpose of computation of transaction value and not the post importation one. The said decision, therefore, is not an authority for the proposition that irrespective of nature of the contract, licence fee and charges paid for technical know-how, although the same would have nothing to do with the charges at the pre-importation stage, would have to be taken into consideration towards computation of transaction value in terms of Rule 9(1)( c) of the Rules. The transactional value must be relatable to import of goods which a' fortiori would mean that the amounts must be payable as a condition of import. A distinction, therefore, clearly exists between an amount payable as a condition of import and an amount payable in respect of the matters governing the manufacturing activities, which may not have anything to do with the import of the capital goods. Interpretative Note appended to Rule 4 also plays an important role in a case of this nature. Said rule clearly states that the charges or costs envisaged thereunder were not to be included in the value of the imported goods subject to satisfying the requirement of the proviso that charges were distinguishable from the price actually paid or payable for the imported goods. Therefore, appeal dismissed.

High Courts

Bombay

• The International Association of Lions Clubs V/s The Association of Lions India & Ors.

Plaintiffs filed suit for relief against defendants alleging that defendants infringed trademark rights of plaintiffs and committed acts of passing off by using word “Lion” as part of name of defendants’ association. Plaintiffs claimed that word “Lion” so used by defendants is part of the registered trade mark of plaintiffs. Defendants challenged same on ground that there was gross delay and latches on the part of the plaintiffs in taking our present application for ad –interim relief as defendants have been using said word as part of their logo for 14 years and plaintiffs did not raise any objection to same for 14 years and therefore, plaintiffs are deemed to have acquiesced to the acts and activities of defendants in use of their logo. Hence, present suit. Whether plaintiff is entitled to relief claimed? Held, Apex Court in the case of Power Control Appliances V/s. Sumeet Machines (P) Ltd held that acquiescence is one of the defences available under section 30(1)(b) of the Trade and Merchandise Marks Act, 1958. The Apex Court went on to observe that acquiescence is sitting by, when another is invading the rights and spending money on it. It is a course of conduct inconsistent with the claim for exclusive rights in a trade mark, trade name etc. It implies positive acts; not merely silence or inaction such as is involved in latches. It went on to observe that acquiescence is one facet of delay. For, if the plaintiffs stood by knowingly and let the defendants built up an important trade until it had become necessary to crush it, then the plaintiffs would be stopped by their acquiescence. If the acquiescence in the infringement amounts to consent, it will be a complete defence. In the present case, plaintiffs were sitting by or allowing the stated defendants to use the name, trade marks and logo for all these 14 years. This course of conduct of the plaintiffs is inconsistent with the claim for exclusiveness of rights in a trade mark, trade name etc. On these reasoning, the plaintiffs will not be entitled for "ad-interim relief".

• Zelabai w/o Chintaman Chandasare, Agriculturist, Bhoras, Dist. Jalgaon v. The State of Maharashtra, Through its Secretary in Revenue and Forests 

Petitioner’s land was subjected to acquisition. Respondent Land Acquisition Officer passed an award in respect of same. Petitioner preferred a reference against said award and Reference Court passed judgement in favour of petitioner. Petitioner then filed application claiming interest on solatium and component in view of the judgment delivered by the Apex Court in the case of Sunder v. Union of India. Same was opposed by Respondent-State on ground that judgment and decree passed in favour of petitioner was passed prior to the pronouncement of the judgment and order by the Apex Court in the case of Sunder. Therefore, in cases wherein the judgments and awards were passed prior to the declaration of the law by the Apex Court, such cases should not be reopened. Hence, present petition. Whether in the light of the decision in Sunder, the awardee/decree-holder would be entitled to claim interest on solatium in execution though it is not specifically granted by the decree? Held, the controversy raised could be resolved by giving a reference to the case of Gurpreet Singh v. Union of India (2006) 9 SCC 457 wherein Apex Court held it is well settled that an execution court cannot go behind the decree. If, therefore, the claim for interest on solatium had been made and the same has been negatived either expressly or by necessary implication by the judgment or decree of the Reference Court or of the appellate court, the execution court will have necessarily to reject the claim for interest on solatium based on Sunder on the ground that the execution court cannot go behind the decree. But if the award of the Reference Court or that of the appellate court does not specifically refer to the question of interest on solatium or in cases where claim had not been made and rejected either expressly or impliedly by the Reference Court or the appellate court, and merely interest on compensation is awarded, then it would be open to the execution court to apply the ratio of Sunder and say that the compensation awarded includes solatium and in such an event interest on the amount could be directed to be deposited in execution otherwise, not. Such interest on solatium can be claimed only in pending executions and not in closed executions and the execution court will be entitled to permit its recovery from the date of judgment in Sunder (19th September, 2001) and not for any prior period. The Apex Court has indicated the position in law by way of clarification in exercise of powers under Article 141 and 142 of the Constitution of India. In view of the clarification made by Apex Court in the case of Gurpreet Singh v. Union of India, we find that there is no ambiguity now for the trial Court to pass necessary orders in accordance with law and on the merits of each case.

Delhi

• Diageo North America, Inc. And another v. Shiva Distilleries Limited

Plaintiffs, owners of registered trademark “SMIRNOFF”, filed suit against defendants for trademark infringement for use of the mark “BRISNOFF”. Plaintiffs alleged that the words “SMIRNOFF” and “BRISNOFF” are similar and that both words are used in relation to same product “vodka”. Defendants challenged same on ground that the words are not similar and that the intending purchasers of the competing products were literate persons belonging to an affluent class of society who could easily distinguish one product from the other. Hence, present suit. Whether defendants infringed plaintiffs’ trademark rights? Held, as pointed out by the learned counsel for the defendant this syllable NOFF has been used by third parties in respect of vodka. Although the learned counsel for the plaintiffs had submitted that oppositions have been filed by them in respect of each such third-party, the fact remains that the syllable NOFF has been in use in respect of alcoholic products and particularly in the case of vodka. Perhaps, the same is used to indicate a Russian connection as vodka is generally discerned as a Russian drink. Whether it has become a descriptive term or not is debateable but, at this prima facie stage it cannot be said that the plaintiffs have established their exclusive right to use the same. As regards the first syllable, there is no similarity between SMIR and BRIS. Although all the letters are common except the letter and M in SMIR and the letter B in BRIS, the arrangement of the letters is entirely different, as is the phonetic and visual result. Further, the intending purchasers of the competing products are literate persons belonging to the affluent class of society and who would be in a position to easily distinguish SMIRNOFF from BRISNOFF. The average person with imperfect recollection would have to be from amongst the sub-set of such persons ie., discerning consumers of vodka. Therefore, the trade mark BRISNOFF is not deceptively similar to, nor can it be confused with the Plaintiffs' trade mark SMIRNOFF.

SEBI

Press Release

• SEBI amends Clause 41 of the Listing Agreement

Press Release No. : 216/2007 Dated 10.07.2007: Securities and Exchange Board of India (SEBI) vide Circular dated July 10, 2007, has directed all stock exchanges to replace the existing Clause 41 of the Equity Listing Agreement with a revised clause which aims to rationalize and modify the process and formats for submission of financial results to the stock exchanges. The revised clause also contains other modifications aimed at improving the presentation of the sub-clauses. Accordingly, the revised clause requires listed companies to furnish either unaudited or audited quarterly and year to date financial results to the Stock Exchange within one month from the end of each quarter. Where unaudited results are furnished, the same are required to be followed with a Limited Review Report. This is with a view to enable investors to know the performance of listed companies as early as possible. The revised clause has also simplified provision for explanation in variation between items of unaudited and audited quarterly/ year to date / annual results. Further, the revised clause requires that explanation for variation be furnished in respect of Net Profit or Loss After Tax and for exceptional / extraordinary items.  

• SEBI amends (Disclosure and Investor Protection) Guidelines, 2000

Press Release No. : 217/2007 Dated 10.07.2007: It is notified that Securities and Exchange Board of India (SEBI) vide Circular dated July 10, 2007, issued to Merchant Bankers and Stock Exchanges, has amended certain provisions of SEBI (Disclosure and Investor Protection) Guidelines, 2000 to facilitate government companies/ corporations, statutory authorities / corporations or any special purpose vehicle set up by any of them, which are engaged in infrastructure sector, to tap Indian primary market through Initial Public Offerings (IPOs).

Press Information Bureau

• DEPB Rates Raised to Help Sustain Export Growth Momentum

PIB Dated 12.07.2007:  Commerce & Industry's Minister has announced an export package comprising of enhanced DEPB rates to help Indian exporters who had recently suffered due to a rising rupee. Accordingly, the new DEPB rates are expected to help sustain the export growth built upon the strength of a booming economy and that the package would neutralize the adverse impact of rising rupee on exports which have been built upon the success of Indian economy achieved through export earnings in recent years. The package includes: Enhanced DEPB rates by 3% for 9 sectors i.e., textiles (including handloom), readymade garments, leather products, handicrafts, engineering products, processed agricultural products, marine products, sports goods and toys and enhanced DEPB rates by 2% for the rest of the items. Further, ECGC premium has been reduced by 10% of the existing premium rates and to clear all arrears of terminal excise duties and CST reimbursement, an amount of around Rs.600 crore has been released. The rate of interest on pre and post-shipment credit has also been reduced by 2%.

RBI

Press Release

• Committee on Financial Sector Assessment

Press Release No. : 2007-2008/71 Dated 16.07.2007: Vide the above press release, RBI notifies that Dr. D.Subbarao, Finance Secretary, Government of India has been appointed as the Co-chairman of the Committee on Financial Sector Assessment upon retirement of Shri Ashok Jha, the earlier Finance Secretary and Co-chairman of the Committee.

Insurance Regulatory and Development Authority (IRDA)

• Guidelines on Anti-Money Laundering Programme for Insurers

Circular No. 022/CIR/IRDA/AML/JUL-07 Dated 06.07.2007: The Insurance Regulatory and Development Authority notifies that the Central Government in consultation with the Reserve Bank of India has brought about amendment to the Prevention of Money-Laundering (Maintenance of Records of the Nature and Value of Transactions, the Procedure and Manner of Maintaining and Time for Furnishing Information and Verification and Maintenance of Records of the Identity of the Clients of the Banking Companies, Financial Institutions and intermediaries) Rules, 2005 vide the gazette notification No. G.S.R. 389 (E) dated 24 th May, 2007. Accordingly, the amended Rules shall be called Prevention of Money-laundering (Maintenance of Records of the Nature and Value of Transactions, the Procedure and Manner of Maintaining and Time for Furnishing Information and Verification and Maintenance of Records of the Identity of the Clients of the Banking Companies, Financial Institutions and Intermediaries) Amendment Rules, 2007 and shall come into force on the date of their publication in the Official Gazette.

Cases

• Leapfrog Enterprises, Inc. v. Fisher-Price, Inc. And Mattel, Inc.

Plaintiff owner of patented device in question which is a learning device to help young children read phonetically, filed suit for patent infringement against defendant on the ground that defendant’s product employed a technique similar to that of plaintiff’s product and therefore infringed its patent rights. Trial Court held that defendants did not infringe plaintiff’s patent rights on the ground that plaintiff’s product was based on an ordinary skill in art. Held, plaintiff’s patented product is a device, a toy that teaches reading based on association of letters with their phonemic sounds updated with modern electronics and therefore is based on knowledge of an ordinary skill. Accommodating a prior art mechanical device to modern electronics would have been reasonably obvious to one of ordinary skill in designing children’s learning devices. Applying modern electronics to older mechanical devices has been commonplace in recent years. Therefore, judgement of lower court is affirmed.

• Motionless Keyboard Company v. Microsoft Corporation and Nokia Inc and Saitek Industries Ltd.

Plaintiff-company owns the '477 and '322 patents. The patents, entitled "Ergonomic Keyboard Input Device," claims an ergonomic keyboard designed to accommodate the architecture of the human hand. According to the invention, the keyboard requires only slight finger gestures to actuate the keys. Plaintiff sued defendants Microsoft, Nokia, and Saitek for infringement of the '477 and '322 patents alleging that Microsoft's "Strategic Commander" game controller and Saitek’s game joysticks infringed plaintiff’s patent. It alleged that some of Nokia’s phone models also infringed its patent. However, district court ruled that defendants did not infringe plaintiff’s patent rights. Hence, present appeal. Held, plaintiff did not provide any particularized testimony to specifically show that the keys in question work in the same way as the keys used in defendants’ systems, Therefore, there were no genuine issues of material fact as to any of the defendants’ products. Hence, district court was right in ruling that there was no literal infringement by defendants. 

• William Darden V. Marybeth Peters, Register of Copyrights

Plaintiff-appellant created a website called "appraisers.com," an online referral service for consumers to locate real estate appraisers throughout the United States. The website features a series of maps that enable a user to find an appraiser in a desired location by pointing to and clicking on the appropriate map. Plaintiff then filed an application with the Copyright Office seeking to register his website, which he titled "APPRAISERS dotCOM". He claimed copyright ownership in the additions made to the pre-existing census maps. However, Examining Division of the Copyright Office rejected both applications on ground that in order to be copyrightable, a work of the visual arts must contain a minimum amount of pictorial, graphic, or sculptural authorship" and that "copyright does not protect familiar shapes, symbols, and designs or mere variations of typographic ornamentation, lettering, fonts, or coloring. The labeling, relief, shadowing and shading that plaintiff contributed to the preexisting maps, the examiner concluded, are standard elements that do not contain copyrightable authorship. Hence, present appeal. Held, plaintiff is claiming that the Register simply reached the wrong result, not that the Register applied the wrong legal standard or misapprehended or ignored the controlling legal principles. In Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983), it was held review under section 706(2)(A) is "narrow" and the reviewing court is not permitted to substitute its own judgment for the judgment of the agency. Rather, the court is to determine "whether the decision was based on a consideration of the relevant factors. Plaintiff makes no assertion of this kind here; he merely argues that the agency should have concluded that the Maps and APPRAISERS dotCOM works contained the requisite level of creativity. Because plaintiff failed to identify any relevant factor or legal principle that the Register failed to consider, the agency’s decision cannot be set aside as "contrary to law."

News

• Japan court nixes damages for WWII-era chemical weapons leak

The Tokyo High Court reversed a 2003 ruling awarding 190 million yen (approximately $1.56 million) in compensation to 13 Chinese plaintiffs injured by World War II-era chemical weapons left in China by the Japanese military. The court's decision came on the grounds that the plaintiffs had not sufficiently established that their injuries would have "inevitably been prevented" had the Japanese government acted more responsibly regarding the chemical weapons. The court has previously denied compensation on the grounds that it would have been impossible for Japan to remove the estimated 700,000 weapons left on Chinese soil at the end of the war. 

Japanese courts have consistently denied Chinese and Korean compensation claims for wartime atrocities on the grounds that the 1972 Joint Communique of the Government of Japan and the Government of the People's Republic of China and the 1965 Treaty on Basic Relations between Japan and the Republic of Korea renounced Chinese and Korean claims for war reparations from Japan. Other compensation suits have also been denied on the grounds that the 20-year statute of limitations for compensation had expired. Japan remains obligated to remove the chemical weapons still left in China before the year 2012 under the terms of the 1997 Chemical Weapons Convention. 

• UN denies immunity to rights expert accused of corruption in Bangladesh

The office of UN Secretary-General denied UN immunity from prosecution to a UN human rights investigator in Bangladesh who is charged with corruption. The UN expert was jailed earlier this month after being charged as part of a government crackdown on corruption. UN experts are generally granted immunity from prosecution under the Convention on the Privileges and Immunities of the United Nations, but the secretary-general must decide whether it applies to a given situation. The Secretary General said that the allegations against the expert "appear not to be related to, or otherwise fall within, her functions as special rapporteur." 

• New Thailand cyber law gives police access to home computers

Thailand's 2007 Crimes Act became effective, granting authority to Thai police to confiscate and search private computers. The law is reportedly aimed at reining in Internet pornography and libel, with some violations that threaten national security carrying prison sentences of up to 20 years. Internet service providers will be required to keep individual user records for 90 days. Critics, such as rights group Freedom Against Censorship Thailand, fear that the Act gives police broad power to invade citizens' privacy. In April, the Thai government banned access to the popular video-sharing website YouTube and several other websites that contained material deemed offensive to the country's monarch. Earlier this month, the nation abandoned a law that allowed the cabinet to censor political or controversial Internet sites solely at the discretion of the Minister of Communication, instead providing that websites be censored only by court order. 

• Florida governor lifts temporary ban on executions

A warrant signed by Florida Governor Charlie Crist ended the State of Florida’s temporary suspension on executions. The ban was instituted last December by the then-Governor Jeb Bush after the botched execution of Angel Diaz, who endured a 34-minute-long lethal injection that required a second injection after needles were improperly inserted into his arm. The move came as a surprise to the Florida legal community, where it was widely believed that the temporary suspension would continue until the resolution of Lightbourne v. State of Florida, a lethal injection challenge arising out of the Diaz execution. That case is scheduled for oral arguments before the Florida Supreme Court in October.