Legislative and Regulatory Update
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In This Issue [No.52] June 10, 2003
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Cases
Source: Westlawinternational.com
Environmental Law: Validity of local air quality rules regulating purchase of fleet vehicles-Certiorari Granted.
The United States Supreme Court has granted certiorari from a Ninth Circuit decision in which the Court of Appeals summarily affirmed, for reasons stated in the district court's opinion, a district court's judgment that the Clean Air Act (CAA) did not preempt fleet rules adopted by California's South Coast Air Quality Management District (SCAQMD). The CAA prohibited states from imposing emissions standards on the initial retail sale of new vehicles. However, the district court reasoned, local air quality rules requiring the operators of fleets to purchase only vehicles designated by the district as meeting its pollution standards imposed no new emission requirements on the sale of vehicles but, rather, regulated only the purchasing and leasing of vehicles. The CAA expressly required the district to establish fleet rules.
In their petition for a writ of certiorari, the petitioners asked whether local government regulations prohibiting the purchase of new motor vehicles with specified emission characteristics, which vehicles were otherwise approved for sale by state and federal regulators, were preempted by the Clean Air Act. (Case below: Engine Mfrs. Ass'n v. South Coast Air Quality Management Dist., 309 F.3d 550 (C.A.9-Cal. 2002).)
Engine Manufacturers Ass'n v. South Coast Air Quality Management Dist.
Intellectual Property: Lanham Act does not require attribution when copying uncopyrighted works -- Decision.
The United States Supreme Court has held that the doctrine of reverse passing off may not be applied under the Lanham Act to protect creative works from unaccredited copying. Under reverse passing off, the producer of a product misrepresents someone else's goods or services as his own.
The case involved a WWII television series produced in the late 1940s based on a book by General Dwight Eisenhower by a producer that had been assigned exclusive television rights. The holder of the copyright on the book renewed the book's copyright, but the television producer allowed its copyright to expire in the 1977, leaving the television series in the public domain. Thereafter, the producer reacquired the television rights in the book, and a sublicensee produced a videocassette series that incorporated much of the original television show. Another video producer released an unauthorized competing videocassette that incorporated much of the old series, although it altered the sequence of the footage and incorporated a new narrated opening and new chapter headings. No credit was given the original producer.
Suit was brought against the second video producer for "false designation of origin" under § 43(a) of the Lanham Act, 15 U.S.C.A. § 1125(a). The Ninth Circuit held the video producer liable for reverse passing off because its product "bodily appropriated" the old television series without attribution. The Ninth Circuit rejected the video producer's argument that liability required a showing of likely consumer confusion about the source of the videos.
Writing for an unanimous 8-0 court, Justice Scalia noted that the claim of "false designation of origin" undoubtedly would have been sustained if the second video producer had merely bought some of the sublicensee's new video tapes and copied them. However, the video producer instead took a work in the public domain, the original television series, made what were arguably minimal changes, and produced its own videotapes. The Lanham Act applies only to those unfair trade practices prohibited by its text.
Because the video producer was the "origin" of the videotapes it sold as its own, suit under § 43(a) of the Lanham Act was not available. The term "origin" referred to the source of the goods, the producer of the tangible product. "[T]he phrase 'origin of goods' is ... incapable of connoting the person or entity that originated the ideas or communications that 'goods' embody or contain," Justice Scalia said.
The Lanham Act prohibits actions like trademark infringement that deceive consumers and impair a producer's good will, for example, passing of another's product as Pepsi- Cola, or reverse passing off Pepsi-Cola as its product. The consumer buying Pepsi- Cola is not concerned with the origin of the drink, in the sense of who first derived its formula, and does not assume that the brand- name company, or producer, is the same as the creator. "The words of the Lanham Act should not be stretched to cover matters that are typically of no consequence to purchasers."
Although purchasers do care about ideas contained or embodied in a communicative product-a consumer, for example, may be more concerned with the author of a book than with its publisher-giving the Lanham Act protection to such products would cause a conflict with copyright law, which is precisely directed to that subject and which grants the public the right to copy without giving credit once the copyright on the material has expired. (Case below: Twentieth Century Fox Film Corp. v. Entertainment Distributing, 34 Fed.Appx. 312, 2002 WL 649087 (C.A.9-Cal. 2002).)
Dastar Corp. v. Twentieth Century Fox Film Corp 2003 WL 21251442 (U.S.)
Torts: Judgment creditor stated claim against judgment debtor's attorneys for creditor fraud.
A judgment creditor stated a claim against the judgment debtor's attorneys for creditor fraud. A complaint alleging that an attorney has knowingly and intentionally participated in a client's unlawful conduct to hinder, delay, and/or fraudulently obstruct enforcement of judgment of court states a claim under New Jersey law for creditor fraud against the attorney. This is so even if the complaint does not allege any misrepresentation by the attorney to the judgment creditor and does not allege that the creditor detrimentally relied on such misrepresentation.
Morganroth & Morganroth v. Norris, McLaughlin & Marcus, P.C.
Torts: Scienter requirement of common law strict liability in dog bite cases would not be abrogated.
The scienter requirement of common law strict liability in dog bite cases would not be abrogated in a Wyoming case brought by a minor child's mother, on behalf of the child, against the owners of a dog that bit the child. The Wyoming Supreme Court concluded that it would be better for the legislature to address the issue. Also, the child was not without any remedy given the different theories of recovery in dog-bite cases. Lastly, the relevant factors concerning the imposition of a tort duty had not been sufficiently factually developed in the case.
Borns ex rel. Gannon v. Voss
News
A federal judge in Oklahoma has approved a $36 million settlement that -- subject to one condition -- will require McDonnell Douglas to compensate about 1,100 of its former employees for the pensions and other benefits they lost when the company shut down a plant. It's only the third time that employees have prevailed on a claim that a company violated ERISA by closing a plant to shed employees with high benefit or pension costs.
Sun Microsystems' $1 billion antitrust dispute with Microsoft is still moving forward, unfazed by AOL Time Warner's move recently to settle its antitrust fight with the mammoth Redmond, Wash.-based software company. Lawyers representing Santa Clara, Calif.-based Sun and Microsoft both say the issues central to their dispute outnumber AOL's simpler argument that Microsoft used its monopoly power to strangle the Netscape browser
In a decision that will make it more difficult for wireless phone companies to win court battles against local zoning boards, the 3rd Circuit ruled that the burden is on the phone company to show there was already a "significant gap" in coverage before it entered the local market. The ruling dictates the calculus courts must use when deciding whether a zoning board's decision violates the Telecommunications Act of 1996.
The U.S. Supreme Court said on Monday that one Vietnam War veteran diagnosed with cancer can sue Agent Orange's manufacturers over exposure to the defoliant, despite a 1984 global class-action settlement. But it set aside a ruling that allowed a second veteran to sue, and sent his lawsuit back for further consideration. The case involved Daniel Stephenson and Joe Isaacson, who alleged their exposure to the herbicide sprayed by the U.S. military during the war caused their illnesses
The Supreme Court let stand Monday a ruling that struck down a Cincinnati law that sought to create a "drug-exclusion zone" by banning anyone arrested or convicted of certain drug offenses from a high-crime neighborhood.
Primary Market Division
Amendments to the SEBI (Disclosure and Investor Protection) Guidelines, 2000
Circular No. RMB (Compendium) Series Circular No. 10 Dated 02.06.2003 : In Chapter XVII After the existing clause 17.2.1, the following has been inserted, namely :
"17.2A Exemption
17.2A.1 The Board may grant exemption from the application of any particular provision(s) of these guidelines:
(a) on an application made by any listed company or intermediary connected with the issue;
(b) of a technical violation or a possible technical violation; or,
(c) on being satisfied that the violation was caused or may be caused due to factors beyond the control of the applicant."
Secondary Market Division
Eligibility of a sub-broker to trade through the Subsidiary Company
Circular No. SMD/SE/Cir-20/2003/02/06 Dated 02.06.2003 : As per the conditions mentioned in the circular no. SMD-II/Policy/Cir-37/1999 dated November 26, 1999, the subsidiary company can register only the members of the parent stock exchange as sub-brokers of the subsidiary company and no other client/sub-broker can be entertained by the subsidiary company. Hence, the member has to be eligible to trade on parent stock exchange to be eligible to trade through the subsidiary company as its sub-broker. It was noticed that the necessary provisions in this regard have not been made in the rules, bye-laws and the regulations of all the stock exchanges which have set up subsidiaries. The corresponding provisions have also not been made in the Memorandum /Articles of Association of the subsidiary company.
In view of the above, all the stock exchanges which have set up subsidiaries have been directed to make the necessary provisions in their rules, regulations and the byelaws as well as in the Memoranda/ Articles of Associations of the subsidiary companies to the effect that the only members eligible to trade on the stock exchange are eligible to trade/ continue to trade through the subsidiary company.
Constitution of Arbitration Committees and Arbitration Panels
Circular No. SMD/SE/Cir- 19/2003/02/06 Dated 02.06.2003 : Pursuant to the recommendation of the Joint Parliamentary Committee (JPC) in relation to Securities Market Scam, it has been decided that the provision of the Rules or Articles of Association, as the case may be, and bye-laws of the stock exchanges shall provide that in respect of dispute between members and non members the arbitration committees /arbitration councils / arbitration panels shall consist of persons other than members of the stock exchange who shall be nominated with prior approval of the Board. Accordingly, the Exchanges are directed to make necessary amendments to the rules or Articles of Association / Bye-laws for the implementation of the above decision within two months from the date of this circular.
The Exchanges are directed to reconstitute the arbitration committees /arbitration councils/ arbitration panels/ for resolution of disputes between members and non-members, in the manner specified above, within a period of three months from the date of this circular with the approval of SEBI.
Use of Impact Cost Calculations of another Exchange
Circular No. SMD/SE/Cir-18/2003/02/06 Dated 02.06.2003 : SEBI had received representations from some stock exchanges expressing their inability to compute the mean impact cost calculations at their exchanges and sought the permission to use the impact cost calculations of NSE/ BSE. It has been decided to allow such stock exchanges to use the impact cost of BSE or NSE provided that those stock exchanges have entered into a formal legal arrangement with the relevant stock exchanges (BSE or NSE) for liquidating the positions of their members if necessary, on that stock exchange.
Regulations
Securities and Exchange Board of India (Mutual Funds) (Amendment) Regulations, 2003
Notification No. SO632(E) Dated 29.05.2003 : (i) in regulation 2, the following clause (ma) has been added after the existing clause (m):
"(ma) 'fund of funds scheme' means a mutual fund scheme that invests primarily in other schemes of the same mutual fund or other mutual funds."
(ii) Sub Regulation 6A has been inserted specifying that the Chief Executive Officer of the asset management company shall ensure that the mutual fund complies with all the provisions of these regulations and the guidelines or circulars issued in relation thereto from time to time and that the investments made by the fund managers are in the interest of the unitholders and shall also be responsible for the overall risk management function of the mutual fund. Sub Regulation 6B has been inserted specifying the fund managers (whatever the designation may be) shall ensure that the funds of the schemes are invested to achieve the objectives of the scheme and in the interest of the unitholders.
(iii) In regulation 52, in sub-regulation (6), the following proviso has been inserted after the existing proviso.
(iv) In Seventh schedule proviso has been inserted in clause 4, clause 9A and Clause 12 have also been inserted.
Amendment to Notification No. S.O. 1329 dated 8th May, 1978
Notification No. S.O. 518 (E) Dated 09.05.2003 : In the said notification, after serial no: 39, the following serial no and the entries relating thereto have been inserted, namely:-
“40. National Cooperative Development Corporation (NCDC)”.
Notifications under Income Tax Act, 1961
Notification No. 139/2003 and No. 140/2003 Dated 30.05.2003 :
1. Panjim Gymkhana, Panaji, Goa has been Notified U/S 10(23C)
2. Shri Ramkrishna Ashram, 24 Parganas (South), West Bengal has been Notified U/S 10(23C)(iv)
Income-Tax (7th Amendment) Rules, 2003
Notification No. 138/2003 Dated 29.05.2003 : (i) in rule 114, after sub-rule (3), sub-rule 4 has been inserted specifying that the application referred to in sub-rule (1) in respect of persons mentioned in Column 2 of the Table specified shall be accompanied by the documents mentioned in Column 3 as proof of identity and address of the applicant.
(ii) Form No. 49A relating to Application for Allotment of Permanent Account Number has been substituted.
Amendment to Notification No.6/2002 Dated 01.03.2002
Notification No. 48/2003 Dated 29.05.2003 : 1. In the Table S.No. 276 has been inserted relating to Footwear subjected to any one or more of the following processes, namely :
(i) packing or repacking; or
(ii) labeling or relabelling of containers; or
(iii) adoption of any other treatment to render the footwear marketable to the consumer.
2. In the Annexure, after Condition No. 62 and the conditions relating thereto, Condition No. 63 and Conditions have been inserted.
Central Excise - Whether drawing of wire from wire rod amounts to manufacture under section 2(f) of Central Excise Act, 1944
Circular No. 720/36/2003-CX Dated 29.05.2003 : In view of the judgments of Hon. Supreme Court in the case of (i) M/s. Vishwaman Industries (ii) Hind Enterprises and (iii) M/s Technoweld Industries, holding that drawing of wire from wire rods does not amount to manufacture, it has been decided to withdraw the instructions contained in Circular No. 570/7/2001-CX dated 16.2.2001 specifying the same to be manufacture.
Revised norms for execution of Bond and Bank Guarantee under Advance License and EPCG Schemes
Circular No. 48/2003 Dated 06.06.2003 : DGRI has reported a serious fraud committed under Advance License Scheme by importers of POY/PFY fabrics etc. of Mumbai and Gujarat areas. As a result it had become necessary to re-examine the facility of BG concession/exemption extended under earlier DOR Circular Nos. 45/96-Cus. Dated 28.8.1996 and 71/98-Cus. dated 15.9.98 and incorporate additional safeguards. The issue has been re-examined in DOR and revised norms have been issued for the purpose of availing exemption from BG under Advance License and EPCG schemes in amendment of earlier DOR circular Nos. 45/96-Cus dated 28.8.96 and 71/98-Cus dated 15.9.98.
Section 166 of the Finance Act, 2003 - Incorporation of provisions relating to Prosecution in the Finance Act, 1989 in respect of Inland Air Travel Tax
Circular No. 47/2003 Dated 06.06.2003 : It may be noted that the new sections incorporated in the Finance Act, 1989 contain provisions relating to imprisonment and fine for failure to pay inland air travel tax to credit of the Central Government. The new provisions enable the Central Government to take action against the defaulting airlines, which fail to deposit the Inland Air Travel Tax to the account of Central Government in spite of having collected the same from the passengers. It may be noted that these provisions can be invoked only for offences committed after 14-5-2003.
Change of port in the Shipping documents pending amendment in AEPC certificate for hosiery exports
Circular No. 46/2003-Cus. Dated 05.06.2003 : Consequent to the problems faced by the exporters of hosiery in shipment of exports via a port other than the port mentioned in the AEPC certificate for which they have to obtain the amendment in the AEPC certificate and then the amendment in the Shipping Bill is permitted by the Customs, it has been decided that on receipt of request from the exporter the Assistant Commissioner /Deputy Commissioner ( Exports) should allow the change of port in EDI Shipping Bills / invoice to help exporters in getting the goods cleared without waiting for an amendment of documents by AEPC. The ratification of the port of change would be done subsequently by AEPC.
Anti-Dumping Duty
Notification No. 89/2003 Dated 04.06.2003 : Anti-Dumping duty has been imposed on Ball Bearings originating in, or exported from People Republic of China, Poland, Russia and Romania.
Investigation against exports of processed, preserved and Frozen Fish and fish products under DEPB Scheme (S. No. 2 of Product Group 66 of DEPB Schedule) by DGRI/Customs authorities
Circular No. 45/2003 Dated 04.06.2003 : It has been decided that in cases where the investigations carried out by DRI/Customs clearly prove that no chemicals/preservatives were at all used in the export product at any stage, in all such cases proceedings against the exporters shall continue and the matter would be adjudicated as usual on merits. In cases where there is evidence that the sea-food exporter had used only a meager percentage of chemicals/preservatives in the export product, keeping in mind the general practice being followed by sea-food industry and the fact that requirement for giving declaration about usage of chemicals/preservatives in the shipping bill has been withdrawn with effect from 1.4.2002 under DEPB Scheme, it has been decided that in such cases the exporter shall be allowed to avail 4% DEPB benefit if he is otherwise eligible of such benefit.
Classification of goods described as `Magnetic Accupressure Treatment System'
Circular No. 44/2003 Dated 29.05.2003 : it has been clarified that the said goods may henceforth be classified under heading 94.04 of the Customs Tariff from the date of issue of this Circular. Board’s Circular, till it is in force, is binding on the field formations. Therefore, it may be noted that change of classification of the said goods will only be prospective and assessments of all Bills of Entry field between 25.10.2001 i.e. the date on which the earlier Circular No. 56/2001-Cus. was issued, till the date of this revised circular, will be under CTH 90.19.
Courier Imports and Exports (Clearance) Amendment Regulations, 2003
Notification No. 38/2003-N.T. Dated 05.06.2003 : In regulation 2, in sub-regulation (2), in clause (a), for the words “Jaipur and land customs stations other than at Gojadanga and Petrapole in West Bengal” the words “Jaipur, Trivandrum and land custom stations other than at Gojadanga and Petrapole in West Bengal,” have been substituted.
Commissioner of Customs (Adjudication) mentioned appointed as Commissioner of Customs for the purpose specified
Notification No. 37/2003-N.T. Dated 03.06.2003 : The Board has appointed,
1. Commissioner of Customs (Adjudication), Mumbai;
2. Commissioner of Customs (Adjudication), Chennai;
3. Commissioner of Customs (Adjudication), Delhi ; and
4. Commissioner of Customs (Adjudication), Kolkata,
as Commissioner of Customs each having jurisdiction over the whole of India, for the purposes of adjudicating the cases as assigned to them by the Board.
Foreign Exchange Management Act, 1999 - Liberalisation
Circular No. A.P.(DIR Series) Circular No.104 Dated 31.05.2003 : With reference to A.P.(DIR Series) Circulars announcing certain liberalised facilities in Capital Account transactions for a period upto June 30, 2003, subject to review, it has now been decided to extend these facilities beyond June 30, 2003 till further notice.
Revised guidelines for compromise settlement of chronic Non Performing Assets (NPAs)
Notification No. DBS. FID. No. C-15 / 01.02.00 / 2002-03 Dated 30.05.2003 : In terms of paragraph 3(A)(i)(e) of the DBOD Circular No. BP. BC. 65 /21.04.117 / 2002-2003 dated January 29, 2003, the last date of receipt of applications from borrowers was as at the close of business on April 30, 2003 and the processing of applications under the revised guidelines was to be completed by October 31, 2003. It has since been decided to extend the last date for receipt of the applications under the revised OTS Scheme from April 30, 2003 to September 30, 2003 and the date of completion of processing of the applications from October 31, 2003 to December 31, 2003.
Guidelines on Exchange Traded Interest Rate Derivatives
Notification No. IDMC.PDRS. 4802 /03.64.00/2002-03 Dated 03.06.2003 : With a view to enabling regulated entities to manage their exposure to interest rate risks, it has been decided to allow Scheduled Commercial Banks excluding RRBs & LABs (SCBs), Primary Dealers (PDs) and specified All India Financial Institutions (AIFIs) to deal in IRDs in a phased manner. In the first phase, such entities can transact only in interest rate futures on notional bonds and T-Bills for the limited purpose of hedging the risk in their underlying investment portfolio. Allowing transactions in a wider range of products, as also market making will be considered in the next stage on the basis of the experience gained. Norms have been prescribed for transacting IRDs on the Futures and Options (F & O) segment of the stock exchanges.
Flow of Credit to Small Scale Industries Sector (SSIs)
Notification No. IECD. No. 20 /08.12.01/2002-03 Dated 30.05.2003 : Representations have been received from various quarters that the instructions requiring the banks to create sub-limit in the accounts of large borrower accounts to take care of payment of dues of SSI units for the purchases made from them, are not being adhered to by some of the banks resulting in avoidable hardship to the SSI units. The mechanism was designed and put in place on the recommendations of the Group of Ministers on Small-Scale Industries under the Chairmanship of Hon'ble Home Minister and was a major step towards development of the small scale sector. Therefore, banks have been directed to adhere to the instructions meticulously.
Amendment in the Handbook of Procedures (Vol. I)
Public Notice No. 11(RE-2003)/2002-07 and Public Notice No. 10(RE-2003)/2002-07 Dated 30.05.2003 : Amendments have been made in the Handbook of Procedures (Vol. I) and Standard Input Output Norms.
Condition on import of textile and textile articles as per paragraph 11 of chapter 1A
Circular No. 5(RE-2003)/2002-2007 Dated 29.05.2003 : It has been decided to nominate the "Council of Leather Export, Chennai" as a certifying agency to issue certificates to its members for the purpose subject to the following conditions:
(i) Council members have a valid RCMC on the date of issue.
(ii) Importers are registered with the Council as manufacturer exporters in terms of Exim Policy provisions.
(iii) Items of imports are meant for manufacture of export products only and can not be sold/transferred to units in DTA.
Tobacco Board Authorised Auction Platforms Permitted to Sell Unauthorised FCV Tobacco in Andhra Pradesh
Notification No. SO645(E) Dated 30.05.2003 : Central Government has relaxed the operation of the provisions of section 10 of the Tobacco Board Act, 1975(4 of 1975) in the State of Andhra Pradesh from the 4th day of June 2002 to 7th day of August, 2002 and permitted the sale of unauthorised FCV tobacco crop at the auction platforms authorised by the Tobacco Board.
Tobacco Board Authorised to Admit Regular and Registered Traders and Dealers to Purchase Unauthorised Tobacco in Andhra Pradesh Subject to Conditions Specified
Notification No. SO644(E) Dated 30.05.2003 : Central Government has authorised the Tobacco Board to admit, from the 4th day of June 2002 to 7th day of August, 2002, the regular and registered traders and dealers of the Tobacco Board to purchase, at its auction platforms in Andhra Pradesh, the unauthorized tobacco produced by unregistered farmers in the State of Andhra Pradesh, subject to the condition that Rs. 2/- per kg. as extra fee and 15% of the proceeds of the sale as service charges shall be contributed to the Tobacco Fund by every unregistered grower for the unauthorized tobacco.
Initiation of New-Shipper Review of Anti-Dumping Duty
Notification No. 15/2/2003-DGAD Dated 23.05.2003 : New-Shipper Review of Anti-Dumping Duty Imposed on Imports of Vitrified/Porcelain Tiles on Request of M/s. Nanhai Shangyuan Oulian Construction Ceramics Co. Ltd. China (Producer) and M/s. Prestige General Trading, Dubai, UAE (Exporter) has been initiated.
NTSD Contracts Exempted from Section 17 of Forward Contracts (Regulation) Act, 1952
Notification No. SO617(E) Dated 27.05.2003 : Central Government, in consultation with the Forward Markets Commission, has exempted all non-transferable specific delivery (NTSD) contracts in commodities specified, from the operation of section 17 read with sub-section (3) of section 18 of the Forward Contracts (Regulation) Act, 1952 in the whole of India, entered on or after the date of publication of this notification.
Exemption of NTSD Contracts from Section 15 of Forward Contracts (Regulation) Act, 1952
Notification No. SO616(E) Dated 27.05.2003 : Central Government, in consultation with the Forward Markets Commission, has exempted all non-transferable specific delivery (NTSD) contracts in all commodities specified from the operation of section 15 read with sub-section (3) of section 18 of the Forward Contracts (Regulation) Act, 1952, in the whole of India, entered on or after the date of publication of this notification.
Amendment to Notification No. S.O. 32(E) dated 10.1.2003
Notification No. SO599(E) Dated 26.05.2003 : In the said notification, after serial No. 1 and the entries relating thereto, the following serial number and entries have been inserted.
1A Additional Secretary (Animal Welfare) Member
Ministry of Environment and Forests
New Delhi 110003
Indian Administrative Service (Appointment by Promotion) Amendment Regulations, 2003
Notification No. GSR438(E) Dated 28.05.2003 : Entry 3A relating to Chattisgarh, 7A relating to Jharkhand and 17A relating to Uttaranchal have been inserted.
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