by LFIAdmin | Jul 26, 2024 | Uncategorized
DHRUTI KAPADIA, PHD STUDENT AND MEDIATOR
26th July, 2024
How you behave with human beings also depends on how your culture weaves in you and how stakeholders’ culture in disputes brings spark in the mediation process. It is relevant to how you adapt to socially connected resources that impact resolving disputes.
The whole mechanism of mediation is entirely processed with the stakeholder’s culture benefits as culture shows gestures and acceptance to somebody and non-acceptance to somebody else. Therefore, from which state you belong, which region you fall in, and from which country and your nationality can also be a vivid point in deciding your adaptation of the mediation mechanism.
Any disrespect and offers that can disturb the inbuilt beliefs of an individual or a stakeholder while the negotiation or the mediation process is ongoing would mean that you are breaking the shield and letting this pain of disputes aggregate rather than reducing it. It’s more on the mindset and personality of stakeholders that would mean the mediator would have to be very careful and would have to scrutinize who belongs to which nation and what usually is the way they greet each other because if the perfect greetings start, then the ideal conversation is much closer and accessible.
The sensitivity is so profound that forgiveness only comes if one understands what is accepted and what is not and how the whole process can proceed forward for a goal point of settlement. If cultures into cultures and multi-cultures have to mingle in the mediation process, it becomes complicated for the mediator to control our situation where the volcano of sensitivity shoots up. The parties would want to drop out of the process; therefore, do not let this situation happen. It will be essential that the mediators be watchful and ensure that every culture is well engraved and cumulated in the process without any left-out cases. Cultural sameness is impetuous to communicate and network with each other. It also lays the groundwork for productive mediations and negotiations that arise. It helps limit problems that arise not only from a business or personal dispute but also due to the unwillingness to acknowledge cultural differences.
To stimulate the process and come to a conflict resolution solution via mediation, it reflects heavily on the cultural benefits and cultural ingredients so that the same case studies of cultural benefits can be utilised in further processes if similar kinds of stakeholders are involved in the dispute resolution process, particularly more so in mediation.
There are international parties involved in commercial disputes. There are issues about language and also about greets; therefore, the mediator would be a vital role player in making the parties feel comfortable and welcoming as per their own cultures by reading them in a tone that they would appreciate and making them feel comfortable by greeting them as per his tone which the parties may understand.
Making the parties feel very comfortable in the mediation process would lead to an easy solution, allowing them to give up disputes rather than continue the arguments, as comfort zones can be both mental and physical. For that, appreciation must be whenever the stakeholders want to put out their point, even if not accepted from his point of view.
Mediation is a cultural reflection because it shows how the party behaves and where they belong, and that is how the dialogues are in the process. Also, the conclusive settlement comes forward if a peacemaking option is available. There are some cultures where forgiveness will not be an option. Still, there are some cultures where they can apologise and close it well.
To mediate without understanding the cultures of the stakeholders would be a failure process as culture plays a crucial role in mediating the disputes. The colour sheets of culture always play within and outside the human minds, and that is so deeply engraved in each human being that for a moment, if they have to compromise on culture, they will not be willing to do that, therefore respecting the parties’ cultures and accepting the way it will make mediation process easy.
by LFIAdmin | Mar 22, 2024 | Home
By Nazaqat Lal, Advocate & Solicitor
nazaqat_lal@hotmail.com | Mar 22, 2024
INTRODUCTION
Execution of a lease effectively results in the transfer of property for a specified time period, after which, the property reverts back to the lessor or if the lease deed provides, the lessee may have the option to purchase the property on the terms and conditions mentioned in the lease deed. In a leave and license, there is no transfer of property and on termination of the license or expiry of the license period, the licensee’s right to use comes to an end. The distinction between a lease and leave and license becomes important in a dispute situation as it has a bearing on the rights of the parties and the reliefs granted.
DEFINITIONS AND GOVERNING LAW
Lease is governed by the Transfer of Property Act, 1882 and is defined as “a transfer of a right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms.”
Leave and license is governed by the Easements Act, 1882 and license is defined as “Where one person grants to another, or to a definite number of other persons, a right to do, or continue to do, in or upon the immovable property of the grantor, something which would, in the absence of such right, be unlawful, and such right does not amount to an easement or an interest in the property, the right is called a license.”
CASE LAW DISTINGUISHING LEASE AND LEAVE & LICENSE
In the cases of Associated Hotels of India Ltd. v. R.N. Kapoor and C.M. Beena , the question before the Supreme Court was whether it was a case of license or a case of tenancy wherein the license was a camouflage for evading the applicability of rent control legislation. In order to answer this question, the Supreme Court relied upon the tests to distinguish between a lease and leave and license and determined the rights of the parties accordingly.
In Associated Hotels, the Supreme Court held as follows.
“28. …The following propositions may, therefore, be taken as well established : (1) To ascertain whether a document creates a licence or lease, the substance of the document must be preferred to the form; (2) the real test is the intention of the parties – whether they intended to create a lease or a license; (3) if the document creates an interest in the property, it is a lease; but, if it only permits another to make use of the property, of which the legal possession continues with the owner, it is a licence; and (4) if under the document a party gets exclusive possession of the property, prima facie, he is considered to be a tenant; but circumstances may be established which negative the intention to create a lease. …”
Following the decision in Associated Hotels, the Supreme Court of India in the case of C.M. Beena held as under.
“8. …Generally speaking, the difference between a “lease” and “license” is to be determined by finding out the real intention of the parties as decipherable from a complete reading of the document, if any, executed between the parties and the surrounding circumstances. Only a right to use the property in a particular way or under certain terms given to the occupant while the owner retains the control or possession over the premises results in a licence being created; for the owner retains legal possession while all that the licensee gets is a permission to use the premises for a particular purpose or in a particular manner and but for the permission so given the occupation would have been unlawful.”
“10. Given the facts and circumstances of a case, particularly when there is a written document executed between the parties, question arises as to what are the tests which would enable pronouncing upon the nature of relationship between the parties. Evans & Smith state in The Law of Landlord and Tenant (4th Edn.) –
“A lease, because it confers an estate in land, is much more than a mere personal or contractual agreement for the occupation of a freeholder’s land by a tenant. A lease, whether fixed-term or periodic, confers a right in property, enabling the tenant to exclude all third parties, including the landlord, from possession, for the duration of the lease, in return for which a rent or periodical payment is reserved out of the land. A contractual license confers no more than a permission on the occupier to do some act on the owner’s land which would otherwise constitute a trespass. If exclusive possession is not conferred by an agreement, it is a license. … [T]he fundamental difference between a tenant and a licensee is that a tenant, who has exclusive possession, has an estate in land, as opposed to a personal permission to occupy. If, however, the owner of land proves that he never intended to accept the occupier as tenant, then the fact that the occupier pays regular sums for his occupation does not make the occupier a tenant.” (at p. 33)”
CONCLUSION
Courts will place reliance on the intention of the parties, circumstances before and after execution of the document and whether exclusive possession was transferred under the document to determine whether the document in question is a lease or license. The answer to this question becomes fundamental to determining the rights of the parties and reliefs that will consequently be granted. The dividing line between a lease and leave and license is clear though it can often get blurred.
by LFIAdmin | Mar 22, 2024 | Home
By Nazaqat Lal, Advocate & Solicitor
nazaqat_lal@hotmail.com | Mar 22, 2024
- What is a private trust?
A private trust is a separate legal entity created or brought into existence for the purpose of holding property (movable or immovable) for a limited period, after which, such property vests in the beneficiaries of the trust.
A private trust is formed for a small number of beneficiaries as opposed to a public trust, which is formed for the benefit of a larger section or class of people.
“A “trust” is an obligation annexed to the ownership of property, and arising out of a confidence reposed in an accepted by the owner, or declared and accepted by him, for the benefit of another, or of another and the owner:” (Section 3, Indian Trusts Act, 1882)
- What law governs private trusts?
Private trusts are governed by the Indian Trusts Act, 1882 (“the Act”).
- How is a private trust created?
A private trust comes into existence on the execution of a trust deed. This is usually followed by obtaining a PAN Card in the name of the trust and opening a bank account. Trust properties are usually transferred thereafter to the trust.
- Author/settlor, trustees, and beneficiaries
Formation of a trust involves identifying the (i) author/settlor, (ii) trustees and (iii) beneficiaries.
The author or settlor of the trust is the person who creates the trust and transfers property (movable or immovable) to the trust to be held by the trust for the beneficiaries.
The trustees are persons appointed to manage the trust and the trust properties from the time of the creation of the trust till the time the trust properties vest in the beneficiaries. Trustees are usually persons known to the author or settlor of the trust and persons whom the author or settlor has faith in to manage and hold the trust properties till such time as the properties can vest in the beneficiaries.
The beneficiaries are the persons for whom the trust is created and in whom the trust properties eventually vest.
- Why are private trusts created?
Private trusts are primarily created for the preservation of property till the property can be transferred to or vest in the beneficiaries. The following are some examples of when private trusts are created:
(i) for the benefit of children who are presently minors,
(ii) to protect certain assets during family disputes,
(iii) to protect certain assets from becoming the subject matter of matrimonial disputes, etc.
- What are the duties of the trustees?
The duties of trustees include managing the trust property, protecting the title of the trust property, maintaining accounts, and furnishing information to the beneficiaries from time to time, etc. Chapter III of the Act sets out in detail the duties of the trustees.
- How does a private trust come to an end?
A private trust may come to an end in any of the following ways; (i) when its purpose is completely fulfilled, (ii) when its purpose becomes unlawful, (iii) when the fulfillment of its purpose becomes impossible and (iv) when the trust, being revocable is expressly revoked.
by LFIAdmin | Jan 3, 2024 | Uncategorized
By Ritabh Singh, Final Year student at the Government Law College, Mumbai
ritabhsingh44@gmail.com | Jan 03, 2024
INTRODUCTION
A trademark can simply be understood as a word, letter, shape of an object etc. which denotes a certain enterprise and which distinguishes it from other entities. To provide an example, the MNC Apple Inc. has trademarked the word “Apple” and the logo of a bitten apple [1](in its class of goods and services) which distinguishes it from its competitors. A trademark is an intellectual property, meaning it has been creatively invented to be used specifically by its inventor unless he sells the rights therein to a third party.
Trademarks have served an important function not only for companies but also for general consumers. It facilitates the creation of an association between the provided goods or services by the company and the general consumers. This association then furthers the value and reputation of the company.
Having a registered trademark also protects the created brand as it disallows other entities to use the trademark. Thus, once a trademark is registered with the relevant authority, other companies cannot use the trademark. To continue with the above-provided example, other companies, especially competitors, cannot use the trademark “Apple” for their activities, thereby protecting the value created by Apple.
STATUTORY DEFINITION
The Trade Marks Act of 1999 governs the law relating to trademarks in India. The following are the relevant definitions –
1. Section 2(m) : “mark” includes a device, brand, heading, label, ticket, name, signature, word, letter, numeral, shape of goods, packaging or combination of colours or any combination thereof;
2. Section 2(za) : “trade mark” means a mark capable of being represented graphically and which is capable of distinguishing the goods or services of one person from those of others and may include the shape of goods, their packaging and combination of colours;
A trademark is infringed when an entity, not being the registered proprietor or a person using by way of permitted use, uses in the course of trade, a mark which is identical with, or deceptively similar to, the trade mark in relation to goods or services in respect of which the trade mark is registered and in such manner as to render the use of the mark likely to be taken as being used as a trade mark [2].
TYPES OF TRADEMARKS
Trademarks can be generic, suggestive, fancy, arbitrary and descriptive. Generic and descriptive trademarks are difficult to register as they are of a general nature and have no distinct or secondary meaning. They simply describe the product or service provided by the company and use extremely common words as their mark. In contrast, fancy and arbitrary trademarks are registered much more easily and the use of them by other entities does not usually stand in court. Such trademarks are already unique as they may be invented words or may have no connection with the product or service at all or may also suggest a relation with the product or service, but do not describe it [3].
Generic and descriptive words are usually not registered as trademarks. However, some trademarks, even though being of a generic character, tend to develop a unique character in the psychology of general consumers and these consumers start associating that generic trademark with one entity only. The courts take into account certain elements while deciding if a particular generic trademark has attained a distinct meaning [4].
FACTORS MAKING A GENERIC TRADEMARK UNIQUE
It is well misunderstood that a generic word may never acquire distinctiveness and therefore may never be registered. This misconception has been answered by various courts in various judgements. The courts have held that where it is argued that a generic word has acquired distinctiveness, the burden of proof lies on the user of such mark to prove its distinct character.
The most important factor which makes a generic trademark unique is when a consumer having reasonable prudence develops a secondary meaning for the generic word and deeply associates it with the product or service rendered by the company. Only when a generic trademark acquires a distinct identity can it become a unique trademark [5]. A commonly used word can become uncommon in the eyes of the consumers, after which protection by the way of a registered trademark is awarded to the user.
The following are arguments in favour of proving a generic word has attained distinctiveness –
1. Huge market & investments in promotion [6] – If it is shown that a generic trademark is being used to describe a product or service rendered by a company having a huge consumer base and a substantial amount of money has been spent in the promotion of the trademark, it can be argued that the generic word being used to describe the product and service has acquired uniqueness due to the vast number of consumers of the same. The goodwill and reputation enjoyed by the company play a crucial role in the propoundment of this argument.
2. Addition of a unique prefix or suffix [7] – When a unique word is used as a prefix or suffix to a generic trademark, the entire trademark may acquire uniqueness and acquire a distinct identity. Such addition mixes the general word with unique words, thereby making the created word distinct. The interplay of words may result in trademark distinctiveness.
3. Long and exclusive use – When a generic trademark has been exclusively used for a long time, it can be argued to have created a unique identity in the eyes of the generic public. The general public, due to the long and exclusive use of a generic word by a company, has started associating that word only with such a company thereby granting it uniqueness.
4. No competition – If, in a particular class, a company does not have any competition and is the only provider of a good or service, the company may use a generic word as its trademark. The same logic can apply where the goods and services provided by different companies are substantially different and the mark is registered under different classes.
5. Not visually, phonetically or deceptively similar to any other mark [8]- Where a generic word is not visually, phonetically or deceptively similar in any manner to any other registered trademark, it can be argued that the word itself has developed a unique character and begs protection.
The convincing point for the court is that the generic and common word is no longer generic or common and cannot cause any confusion in the eyes of any man with reasonable prudence. Such a word has developed its own uniqueness and is well associated with the company by general consumers [9].
CONCLUSION
It will finally be the decision of the court to decide if a generic word has attained distinctiveness. The court carefully examines the facts and circumstances of each case and then decides the case on merits. In particular, the courts are careful about not creating a monopoly in favour of the user which then directly affects competition. The court also checks if the word can cause confusion in the minds of the general public. Lastly, courts may also issue stringent conditions in the use of a generic word as a registered trademark for its appropriate use and for ensuring healthy competition.
Endnotes
[1] https://www.apple.com/in/
[2] Ref to relevant provisions of the Trade Marks Act, 1999, specifically sec 29.
[3] M/S Matrimony.Com Limited v. Kalyan Jewellers India Ltd. 13th March 2020
[4] Hatsun Agro Product Ltd. v. Arokya Food Products (2016)
[5] Info Edge (India) Pvt Ltd vs. Shailesh Gupta 98 (2002) DLT 499
[6] DFL Limited v. Sohum Shoppe Limited (2015)
[7] Prem Ratan Rathi vs. Ashish Iron Trading Co (2013)
[8] Amritdhara Pharmacy vs. Satya Deo Gupta (1963)
[9] Lazmikant V. Patel vs. Chetanbhai Shah (2002)
by LFIAdmin | Dec 23, 2023 | Uncategorized
DHRUTI KAPADIA, DOCTORATE STUDENT AND MEDIATOR
23rd Dec, 2023
Conflicts often take place across the globe. There are often deep marks left behind from which we see history repeat itself, and we see conflicts occurring frequently. With this, we can see how mediation plays a vital role as one of the mechanisms under the wheel of Alternate Dispute Resolution for resolving disputes. There are different fractions of conflict and conflict occurs at every level of life. It’s not only limited to individuals, but also organizations and has truly captured the world.
The stakeholders often find it challenging to apologize, say it at the workplace, or say it in their own house where spouses fight or parents fight with their children. When it comes to apologizing, there is the self-realization of self-improvisation, and it becomes a leg back option for most of the stakeholders due to which it leads to solid ego issues and many a times the relationships bitter up.
Only if, culturally, we adapt to admit mistakes and to let go of the past and move forward, we find resolution and peace. This process will heal the stakeholders, not only mentally but also emotionally, under which the overall personality of the stakeholders can change to be better human beings. Therefore, when it comes to the strategy of resolving disputes, the smooth process of accepting the wrong and curing it would come forward, and there would be better opportunities for the stakeholders in the global world to progress.
Also, if conflict management together is taught in school, where children start understanding how to handle their conflicts and to come to amicable solutions with their classmates or with their parents or their teachers, they will grow up to be better human beings with the vision to take care of a situation in the global world. They will develop the ability of resolving disputes which would bring effective solutions in a fast track mode and build good relationships not only with conflicting individuals but also with the public at large who would then consider them equipped enough to come up with innovative solutions which can bring a win-win situation for everyone around them.
The same generation holding out to be the nation’s future will always see themselves as good mediators if they are taught to resolve conflicts, from the very inception of their school days, which often is missed out. Hence, a progressive nation must visualize and ensure mediation requires no learning age. Still, it is essential to teach every individual how to actually mediate and also participate in peace-making agreements at all stages in life and to know the positive approaches on how to resolve their conflicts. Therefore, the mindset of our nation’s future should be cultivated in a positive approach way so that as they grow up as individuals, they will know how to negotiate, how to act and react with their society and also how to gain benefits by using strategic thinking instead dealing with life in a destructive manner.
Therefore, the training on how to mediate would be essential if one starts realizing that mediation is social healing; if one has entered into a conflict or has a big community of disputes, which could be emotionally draining, it could cause commercial loss and have a negative impact on society.
There are situations where mediation cannot be resorted to and the disputes are so intense that litigation is the only process and option for the parties to get justice. In such a situation, if an opportunity comes up to understand that there will be significant loss for long years and the parties will drain themselves, then with proper advisors and systemic strategies, there can be applied a strategy at some stage to introduce mediation which can open doors to an amicable solution.
There have been instances of family disputes, property disputes and commercial disputes which have built good, progressive and peaceful ways of dispute resolution by coming to a conclusive settlement through mediation, which can be enforceable by law. The prolonged battles of arguments have closed with amicable solutions, and not only that, with such excellent solutions that result in the stakeholder’s relationships being improved. This shows that mediation is the way for the parties to heal themselves socially and which allows them to rebuild the relationships damaged due to the conflict.
Many people do not seriously indulge in the process of mediation and also abuse the process to delay litigation. However, if the stakeholders genuinely want to resolve their dispute, mediation is the best method of Alternate Dispute Resolution as it will help them achieve commercial benefits, emotional benefits and mental peace as it will save time, money and energy. The experience of re-building relationships can crop out positively for future perspectives as well.
This social healing can help society stay connected. Also, whenever and wherever there is a war, there is always a possibility that conflict management is taken care of and peace is brought through the mediation process. Moreover, the intervention of peace-making bodies such as the United Nations can be helpful.
“World peace must develop from inner peace. Peace is not just the mere absence of violence. Peace is, I think, the manifestation of human compassion.” ― Dalai Lama XIV.
The peace building process truly starts when one starts realizing that violence is not the solution to anything, as destructive modes can only destroy human lives. There have been many wars due to conflicts related to resources, and to date, the impact of those wars remain. It is not only the entire nations’ conflict with global competition, but also individual conflicts, that need to be taken care of to achieve the ultimate solution of peace. It is imperative to realize that mediation plays a vital role in social healing of stakeholders and has the capability to achieve universal peace and abstinence from wars.
