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Legislative and Regulatory Update
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[No.50]
May 20, 2003 |
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International Legal News
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Cases
Source:Westlawinternational.com
Celebrity civil rights icon Rosa Parks had a Lanham Act claim against a rap group who used her name as a song title. As a celebrity who had international fame and authorized television programs and books, she had a property interest in her name akin to that of a person holding a trademark, such as a famous actor or musician. Thus, she had a viable cause of action under the product confusion provision of the Lanham Act against the record producer and musicians who used her name as the title of a song, even though her name might not be eligible for registration as a trademark, and even though the producer and musicians were not selling her brand of compact discs (CDs), if consumers falsely believed that she sponsored or approved the song, or was somehow affiliated with the song or the album. However, a genuine issue of material fact existed as to the existence of an artistic relationship between the song title and the content of the song, precluding summary judgment on the defendants' First Amendment defense to the claim.
Parks v. LaFace Records
As a matter of apparent first impression, a Maine district court has held that the virtual private network of a developer of automated stock-trading computer systems was the electronic equivalent to a locked door. It thus was protected under the provision of the Digital Millennium Copyright Act barring the circumvention of a technological measure that effectively controlled access to protected copyright work.
Pearl Investments, LLC v. Standard I/O, Inc.
Enunciating a bright-line rule regarding the appealability of an order denying a motion to compel arbitration, the Supreme Court determined that an appeal could be taken from an order denying a motion to compel arbitration. The trial court had denied the motion of a used automobile seller to compel the buyer to submit the warranty dispute to arbitration. Though the order denying the motion to compel was not certified as a final judgment and there was no grant of interlocutory appeal, the order was
appealable.
Tupelo Auto Sales, Ltd. v. Scott
A company providing opt-in e-mail marketing services was denied a temporary injunction to enforce the non-competition provision of their confidentiality agreement with their former employees. The company failed to make a prima facie case that the employees' competition with it violated a legitimate business interest. Despite the company's contention that it developed a unique methodology that enabled to capture a large percentage of the market, its sales manual was found to contain nothing but widely known sales and marketing techniques.
Passalacqua v. Naviant, Inc.
Statements posted on an Internet message board, accusing a publicly traded corporation of accounting fraud, warning readers to "get ready for" an "FBI and SEC probe," and advising them to sell the corporation's stock, were not defamatory under Ohio law. Instead the statements amounted to privileged opinion. The postings were fraught with figurative language and hyperbole, and the poster's anonymous screen name "neutronb" conveyed an unprofessional background. The statements were unverifiable to any reasonable reader, and appeared on an open message board with an explicit warning that any posting represented the opinions of the given author.
SPX Corp. v. Doe
A nonresident corporate manufacturer's Internet presence via a web site did not constitute minimum contacts with the state for purposes of the court's exercise of general personal jurisdiction over the manufacturer in a Texas products-liability case. The web site had an extremely low level of interactivity with its users, as demonstrated by the lack of evidence that someone from Texas would be able to complete a purchase order for the manufacturer's product over the web site or that Texas residents had ever completed transactions with the manufacturer over the web site. In addition, the web site, although it suggested that the manufacturer had customers in the United States, did not state that the manufacturer had customers in Texas. The web site was toward the "passive web site" end of the Internet-usage spectrum applied in Texas for the purpose of analyzing whether a court may exercise personal jurisdiction over a nonresident defendant via its Internet presence.
Hitachi Shin Din Cable, Ltd. v. Cain
As a matter of apparent first impression, a Maine district court has held that the virtual private network of a developer of automated stock-trading computer systems was the electronic equivalent to a locked door. It thus was protected under the provision of the Digital Millennium Copyright Act barring the circumvention of a technological measure that effectively controlled access to protected copyright work.
Pearl Investments, LLC v. Standard I/O, Inc.
A company providing opt-in e-mail marketing services was denied a temporary injunction to enforce the non-competition provision of their confidentiality agreement with their former employees. The company failed to make a prima facie case that the employees' competition with it violated a legitimate business interest. Despite the company's contention that it developed a unique methodology that enabled to capture a large percentage of the market, its sales manual was found to contain nothing but widely known sales and marketing techniques.
Passalacqua v. Naviant, Inc.
News
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A
Michigan jury has awarded the family of an obese man $5 million because he
was denied treatment at a hospital after a car crash. The day before that
verdict, an Illinois family accepted a $12.5 million settlement from a
hospital that refused to treat their son, a gunshot victim. The two actions
highlight a dilemma that hospitals face when deciding when to admit patients
and when to send them to what they deem to be more appropriate facilities.
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Claiming
that a controversial DVD de-scrambling code has long been available online
worldwide, a man accused of improperly linking Internet viewers to the code
asked earlier this year that the case against him be declared moot. On
Wednesday, the California Supreme Court rejected his plea 4-1, ensuring that
the closely watched case remains on the court's May 29 oral argument
calendar in San Francisco. Carlos Moreno was the only justice voting to
grant the motion, while Justices Joyce Kennard and Ming Chin rescued
themselves. If the court had agreed that DVD Copy Control Association v.
Bunner, S102588, was moot, it would have meant an automatic victory for
Andrew Bunner, who won at the intermediate appellate level in 2001. San
Jose, Calif.'s 6th District Court of Appeal agreed with Bunner that his
First Amendment rights to free speech trumped the state's trade secrets law.
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In
an employment discrimination suit against an investment bank, a Southern
District of New York judge has proposed a new standard for evaluating
whether the cost of electronic discovery requests should be shifted to the
plaintiff. Judge Shira Scheindlin said the prevailing cost-shifting analysis
has led to an imbalance in favor of large corporate defendants and "may
ultimately deter the finding of potentially meritorious claims." In a
ruling issued Tuesday, Judge Scheindlin dealt with an e-mail discovery
request by Laura Zubulake, who claimed she was illegally fired from UBS
Warburg. While UBS Warburg had already turned over hundreds of pages of
e-mails in Zubulake v. UBS Warburg, 02 Civ. 1243, Scheindlin said it had not
searched for responsive e-mails on backup tapes maintained by the company.
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Regulators
filed fraud charges Monday against a 20-year-old Kentucky man who allegedly
scammed money from would-be investors by creating a Web site for a
fictitious federal agency. The Securities and Exchange Commission lawsuit,
filed in U.S. District court in Tennessee, charged K.C. Smith with raising
$102,554 through bogus Web sites and about 9 million unsolicited e-mail
messages. Smith even used the SEC's own seal to convince investors the
scheme was legitimate, according to the lawsuit.
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Universal
Media Group sued Bertelsmann AG on Monday, claiming the German media giant's
backing of the Napster song-swapping service led to copyright infringement
"millions upon millions" of times. The lawsuit did not ask for a
total amount but requested at least $150,000 for each copyrighted song that
was shared under Napster, which was shut down by a federal judge in
California in 2001.
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MCROBERTS
SOFTWARE, INC. v. MEDIA 100, INC., No. 02-2403 (7th Cir. May 14, 2003)A jury could reasonably conclude that a software license was
limited to certain hardware only, and that defendant exceeded the license's scope, infringing
plaintiff's copyright through unauthorized modification and distribution of
a source code. A lost profits award was not duplicative of actual damages.
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A former
Coca-Cola Co. employee filed a lawsuit Monday alleging that the soft drink
maker engaged in deceptive marketing and accounting and knowingly sold
contaminated products. The suit, filed in Fulton County, Ga., Superior
Court, alleges that the employee, Matthew Whitley, lost his job on March 26
after approaching the world's largest soft drink maker about these alleged
misdeeds.
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WorldCom agreed
Monday to settle accounting fraud charges by paying $500 million to
investors, but a federal judge presiding over the matter said he wants more
time before approving the largest fine ever levied against a public company.
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The Supreme
Court said Monday it will consider when government money can be spent on
religious education, a follow-up to last year's landmark ruling upholding
school voucher programs. The latest case involves students in training to
become ministers or other church leaders. Fifteen states have constitutional
bans on state spending for theology classes.
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SEBI
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Secondary Market Division
Circular No. SMD/Policy/List/Cir -17/2003 Dated 08.05.2003 : Three new sub-clauses (f), (g) and (h) have been added in clause 24 of the Listing Agreement which specify
respectively that the scheme shall be filed to the stock exchange for approval, that the scheme does not in any way violate, override or circumscribe the provisions of securities laws or the stock exchange requirements,
that disclosure of the pre and post-arrangement or amalgamation (expected) capital structure and shareholding pattern,
should be made in the explanantory statement forwarded to the shareholders.
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Department of Revenue
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Notification No. 10/2003 Dated 08.05.2003 : In the said notification, for the words and letters, "Shri Devendra Narain", the words and letters, "Shri N.C. Tiwari" have been substituted.
Notification No. SO509(E) Dated 08.05.2003 : Central Government has notified the appointment of Shri N.C. Tiwari as a Member of the Appellate Tribunal for Forfeited Property. Shri N.C. Tiwari shall hold office till he attains the age of sixty-two years or until further orders, whichever is earlier.
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CBDT
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Notification No. 126/2003 Dated 09.05.2003 : In the Table to Appendix-l of the Income-tax Rules, 1962, in Part A relating to TANGIBLE ASSETS, under the heading "III. Machinery and Plant", in sub-item (3), after entry (xi), entry (xia) relating to Life saving medical equipment, has been inserted.
Notification No. 102/2003 to No. 113/2003 Dated 06.05.2003 : The following institutions have been notified u/s 10(23C)(iv)
The Muslim Educational Society, Bank Road, Calicut, Tibetan Homes Foundation, New Delhi, Centre for Advanced Strategic Studies, Pune, National Council for Applied Economic Research, New Delhi, Krishna Chandra Memorial Trust, Ganjam, Orissa, People's Action for Development (Maharashtra), Mumbai, The National Association for the Blind, Karnataka Branch, Bangalore, Vivekananda Nidhi, Kolkata, Wildlife Association of South India, Victoria Road, Bangalore, People's Action for Development (Maharashtra), Mumbai, Divine Light Trust for the Blind, Bangalore,
National Health and Education Society, Mumbai has been Approved U/S 35(1)(ii)
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CBEC Excise Tariff
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Notification No. 40/2003 Dated 13.05.2003 : Amendments have been made in Annexure II in heading
2 relating to JAMMU PROVINCE.
Circular No. 29/713/2003 Dated 07.05.2003 : Certain doubts have arisen relating to the excise duty structure for textile and textile articles announced during and after Budget 2003, announcements, the clarifications thereon are as specified below :
1. It is clarified that the entire premises having several manufacturers undertaking individual manufacturing activity should not be treated as a single factory. There may not be any physical separation between the different units but the fact that the machines/looms belong to different individuals/legal entities who carry out manufacturing activities unrelated to each other, gives them a distinct identity.
2. It is provided that textile manufacturers fully exempted can endorse, in full, their input documents in favour of any other manufacturer, producer, first or second stage dealer. Such endorsement has to be made by the manufacturer on the original copy of such input invoices and same has to be handed over to the subsequent purchaser of their products.
In that condition exempted manufacturer will not have the original document relating to the purchases of his inputs. In this regard, it is clarified that in such cases it would suffice if the said manufacturer keeps a photocopy of the invoices. This copy should suffice for satisfying condition No. (iv) of para 2 of the notification Nos. 34 and 35/2003-CE relating to keeping of purchase documents.
3. It is clarified that there is no requirement for the traders to necessarily bring the goods to their premises before they are being sold. Such resale can take place from the transporters premises or before such goods are unloaded from the vehicle or even during the transit of the goods. The registered dealer is, however, under obligation to maintain account of all the goods purchased, sold or have under stock.
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CBEC Excise Non Tariff
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Notification No 46/2003 NT Dated 14.05.2003 : Amendments have been made in Rule 3
Notification No. 43/2003 NT Dated 12.05.2003 : In rule 9A,
(i) in sub-rule (1), for the words and figures “A manufacturer, producer, first stage dealer or second stage dealer of yarn or fabrics falling under Chapter 50, 51, 52, 53, 54, 55, 58, 59 or 60 of the First Schedule to the Tariff Act ”, the words and figures “A manufacturer, producer, first stage dealer or second stage dealer of goods falling under Chapters 50 to 63 of the First Schedule to the Tariff Act” have been substituted;
(ii) in sub-rule (4), for the figures and words “12th day of May, 2003”, the figures and words “26th day of May, 2003”have been substituted.
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CBEC Customs Tariff
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Notification NO 78/2003 Dated 14.05.2003 : Central Government has exempted tea and tea waste, when imported into India, from so much of the additional duty leviable thereon under sub- section (1) of section 3 of the Customs Tariff Act, 1975 ( 51 of 1975 ) as is equivalent to the additional duty of excise leviable thereon under section 157 of the Finance Act, 2003 (32 of 2003).
Notification NO 77/2003 Dated 14.05.2003 : Central Government, being satisfied that it is necessary in the public interest so to do, has exempted all goods, as specified in column (3) of the Table in the Seventh Schedule to the Finance Act, 2001 (14 of 2001), as amended vide section 169 of the Finance Act, 2003 (32 of 2003), when imported into India, from so much of the additional duty leviable thereon under sub-section (1) of section 3 of the Customs Tariff Act, 1975 ( 51 of 1975) as is equivalent to the National Calamity Contingent duty leviable thereon under section 136 of the said Finance Act, 2001, read with section 169 of the said Finance Act, 2003.
Notification No. 76/2003 Dated 13.05.2003 : Central Government has exempted goods of the description as specified falling under the Chapter, heading, sub-heading or tariff item of the First Schedule to the Customs Tariff Act, 1975 (51 of 1975), when imported from the Transitional Islamic State of Afghanistan, from so much of that portion of the applied rate of duty of customs as is specified.
Circular No. 40/2003-Cus. Dated 12.05.2003 : It is clarified that conversion of free shipping bills into Advance License/ DEPB/DFRC/Drawback shipping bills and conversion of shipping bills from one export promotion scheme to another (where the benefit of that Scheme has been refused by Customs/DGFT - vide para 4(i) of DOR Circular No.6/2003-Cus.) may be permitted on merits by the Commissioner on case to case basis subject to the conditions specified in Para 4(a),(b) and (c) of DOR Circular No.6/2003-Cus. dated 28.1.2003 and also subject to the following condition :
"the exporter has not availed benefit of any export promotion scheme and no fraud/or suspected manipulation and no investigations have been initiated against the party in respect of such exports under these shipping bills".
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CBEC Customs Non Tariff
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Circular No. 34/2003-N.T. Dated 14.05.2003 : In the notification, Table has been substituted.
Circular No. 33/2003-N.T. Dated 13.05.2003 : Central Government has issued Customs Tariff (Determination of Origin of Goods under the Preferential Trade Agreement between the Transitional Islamic State of Afghanistan and Republic of India) Rules, 2003 to be effective from 13.05.2003.
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Service Tax
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Notification No 6/2003 Dated 14.05.2003 : In the said notification, in the Explanation for the brackets and figure “(90)”, the brackets and figures “(105)” have been substituted.
Notification No 5/2003 Dated 14.05.2003 : Rule 2, Rule 3 and the Form have been amended.
Notification No 4/2003 Dated 14.05.2003 :
1. in rule 6, in sub-rule (7), –
(a) for the numbers and figures “0.25%”, the number and figures “0.4%”
have been substituted;
(b) for the numbers and figures “0.5%”, the numbers and figures “0.8%”
have been substituted;
(c) for the words “five per cent.”, the words “eight per cent.” have
been substituted;
2. Rule 7A relating to Returns in case of taxable service provided by goods transport operators and clearing and forwarding agents, has been inserted.
3. In Form ST-3A, in the Table, in column heading 3, the figures and number “@5%” have been omitted.
4. FORM ST-3B has been inserted.
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RBI
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Circular No. A.P. (DIR Series) Circular No.102 Dated 07.05.2003 : Central Government has conveyed their no objection to allow exporters of sea-food and other perishable food/food products to avail of Rejection Risk Insurance Cover from an insurer outside India. Accordingly, it will be in order for authorised dealers to allow remittance on behalf of their exporters clients towards premium for the rejection risk insurance policies taken by them for export of sea-food and other perishable food/food products from an insurer outside India.
Press Release No. 1144/2002-03 Dated 09.05.2003 : In response to requests from investors, the Reserve Bank of India has decided to enhance the maximum limit of the value of a single bid by a non-competitive bidder from Rs. 1 crore (face value) to Rs. 2 crore (face value) in the auctions of Government of India dated securities.
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DGFT
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Circular No: 3(RE-2003)/2002-2007 Dated 12.05.03 : It has been decided to allocate a quantity of 10,700 MTs (Ten thousand seven hundred MTs) of Raw Sugar and 10,000 MTs (Ten thousand MTs) of White Sugar under preferential quota for export to EU for the year 2003-04.
Circular No. 2/2002-2007 Dated 09.05.2003 : With reference to Notification No. 5 (RE-2003)/2002-07 dated 7.4.2003,
which stipulates mandatory standards for import of certain electrical goods and appliances
to be complied with by the importers, representations have been received from various Associations and importers and keeping in view the operative difficulties pointed out, it has been decided that such mandatory standards in respect of the items at sl. No. 143 to 159 of the above mentioned notification shall come into force after 17.08.2003. It has also been further decided that the consignments of all such items imports of which have been made after 7th April, 2003 shall also be covered by the above clarification and clearance thereof may be permitted by the customs during the intervening period.
Public Notice No. 07 (RE- 03)/ 2002-2007 Dated 09.05.2003 : The Director General of Foreign Trade has notified the procedure for allocation of
Tariff Rate Quota (TRQ).
Notification No. 09 (RE-2003)/ 2002-2007 Dated 09.05.2003 : It has now been decided to make the following proposals with the approval of competent authority:
(i) All quantitative restrictions on export of all varieties of onion stand removed.
(ii) The mechanism of canalisation of export through NAFED & other agencies as notified vide notification No. 41 (RE-98)/1997-2002 dated 12.2.1999 and subsequent notifications issued in this regard would be retained for the time being.
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Department of Commerce
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Notification No. 14/30/2002-DGAD and No. 14/9/2002-DGAD Dated 06.05.2003 : The Preliminary Findings regarding Anti-Dumping Investigation Concerning Import of Ball Bearings and Parts and Components thereof (up to 50 mm bore dia) from China PR, Poland, Russia and Romania and the Final Findings regarding Anti-Dumping Investigations Concerning Sunset Review of Anti-Dumping Duty on Imports of Pure Terephthalic Acid (PTA) from Indonesia, Korea (RP) and Thailand, have been published
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Department of Industrial Policy
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Notification No. SO493(E) Dated 02.05.2003 : Central Government has issued the Patents Rules, 2003 which would come into force on the date on which the Patents (Amendment) Act, 2002 comes into force.
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Ministry of Consumer Affairs
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Notification No. SO512(E) Dated 08.05.2003 : Central Government has constituted the Central Consumer Protection Council, with effect from the 8th May, 2003 for a period of three years, consisting of the members specified.
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Ministry of Environment
and Forest
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Notification No. SO506(E) Dated 07.05.2003 : In the said notification, in Schedule-I, for item No.2 the following item has been substituted,
"2-River valley projects including Hydel Power Projects, Major Irrigation Projects and their combination including flood control project except projects relating to improvement work including widening and strengthening of existing canals with land acquisition upto a maximum of 20 meters, ( on both sides put together ) along the existing alignments provided such canals do not pass through ecologically sensitive areas such as national parks, sanctuaries, tiger reserves and reserve forests."
Notification No. SO499(E) Dated 06.05.2003 : The Central Government has specified -
(a) the rate of cess payable by every person carrying on an industry as mentioned in the
Water (Prevention and Control of Pollution) Cess Act, 1977 and by every local authority, calculated on the basis of the water consumed by him or it, as the case may be, for the purpose mentioned in the corresponding entry in column(1) thereof; and
(b) the rates of cess payable by a person carrying on an industry as mentioned in the aforesaid Act and by every local authority consuming water for domestic purpose calculated on the basis of the water consumed by him or it, for the purpose mentioned, if he or it fails to comply with any of the provisions of section 25 of the Water (Prevention and Control of Pollution) Act, 1974 or any of the standards laid down by the Central Government under the Environment (Protection) Act, 1986.
Notification No. SO498(E) Dated 06.05.2003 : Central Government has appointed the 6th day of May, 2003 as the date on which the said Act shall come into force.
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Ministry of Personnel, Public Greivances and Pensions |
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Notification No. GSR385(E) Dated 07.05.2003 : Central Government has issued the All India Services (Death-cum-Retirement Benefits) Amendment Rules, 2003 to be effective from 07.05.2003 |
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