by LFIAdmin | Oct 18, 2021 | Home
By Isha Thakur, Advocate
ishav1998@gmail.com | Oct 18, 2021
“Bitcoin was created to serve a highly political intent, a free and uncensored network where all can participate with equal access” –Amir Taaki, British-Iranian Programmer
In the state of worldwide pandemic and imposition of subsequent phases of the lockdown, the country has witnessed tremendous economic changes with a fair share of individuals losing their jobs to the impact of it on the demand-supply chain and a wide range of commodities and services revaluating their prices unstably throughout the year. However, in such a succession of events, the majority of us came across frequent advertisements on cryptocurrencies or bitcoins. Virtual currency, popularly known as cryptocurrency, is based on blockchain technology and has become a global phenomenon known to the majority of the people in the world. This switch to virtual currencies qua ‘cryptocurrencies’ as an alternate source of income and investment showcased the immunization of it from the ongoing affairs of the pandemic. Admittedly, a recent report by broker discovery and comparison platform BrokerChooser, reveals India having the highest number of Crypto owners at 10.07 Crore.
Before overseeing the impressive user additions and the legality behind it, it is pertinent to note that cryptocurrency or bitcoins, or digital currency are not interchangeable terms. Digital currency is a broad concept, referring to all monetary assets that are in digital form. Virtual currency is a subset of digital currency and cryptocurrency is a subset of virtual currency. Virtual currencies (VC), being an unregulated form of digital currency, with minimum governmental inference and control and with cryptocurrency using cryptography technology to secure and authenticate currency transactions, Bitcoins (a form of cryptocurrency) has attracted an increasing amount of user additions which has just exponentially increased ever since the Reserve Bank of India (RBI) ban was lifted in March 2020.
The use of cryptocurrency has always been a point of debate with its legality being a mystery to the public. The lack of a traditional government or bank-backed system to regulate its use makes cryptocurrencies target several concerns such as it being a conduit to money laundering and promotion of terrorist activities. The RBI, being concerned about the same, had issued several advisories since 2013 informing various stakeholders about the negative ramifications of cryptocurrencies. Consequently, the RBI issued a circular dated 6th April 2018 which prohibited banks and other entities from trading in virtual currencies. The circular directed the entities regulated by RBI, firstly, not to deal in virtual currencies neither to provide services for facilitating any person or entity in dealing with nor settling virtual currencies and secondly, to exit the relationship with such persons or entities, however, transfer of cryptocurrency from one person to another was not prohibited. At the time of issuance of the circular by the RBI, there was no specific legislation dealing with the transactions in virtual currencies.
The circular was subsequently challenged by the Internet and Mobile Association of India (“Petitioner”) on the ground that it was manifestly arbitrary, based on non-reasonable classification and it imposes disproportionate restrictions. The Petitioner contended that VCs are not legal tenders and do not qualify as money but tradable commodities/digital goods due to which they fall outside the regulatory framework of RBI. The Petitioner further argued that the circular violated the fundamental right to practice any profession or to carry on any occupation, trade, or business under Article 19(1) (g) of the Constitution, as it does not pass the test of proportionality vis-à vis the blanket prohibition imposed on the regulated entities.
The Supreme Court of India after extensively considering the legality of the circular along with relevant provisions and the international position laid down some essential viewpoints: –
Nature of Cryptocurrency
Various courts in different jurisdictions have interpreted cryptocurrencies in different categories ranging from property to commodity to non-traditional currency to payment instrument to money to funds. Though VCs are not recognized as legal tenders as contended by the Petitioner, they are, however, capable of performing most of the functions of real currency, and hence, they cannot be considered as just goods or commodities.
RBI’s power to regulate or prohibit Virtual Currencies
The Supreme Court laid down that the RBI has requisite power vested with it to regulate activities of such nature. The Court referred to the preamble, statement of objects and reasons, and various provisions of the Reserve Bank of India Act, 1934 to substantiate its stance that anything that may pose a threat to or have an impact on the financial system of the country can be regulated by RBI. The Supreme Court further noted that the term ‘regulate’ entails the word ‘prohibit’ in it. The court explained that the circular does not impose a prohibition on the use of or the trading in VCs. It merely directs the entities regulated by RBI not to provide banking services to those engaged in the trading or facilitating the trading in VCs. Hence, RBI has and shall have the requisite power to frame policies and issue directions to banks with respect to transactions relating to cryptocurrencies.
Infringement of Article 19(1)(g) of the Constitution
The blanket ban imposed by the RBI on providing banking services to cryptocurrency businesses was held to be violative of Article 19 (1)(g) of the Indian Constitution where the practice to carry on any trade or business was hampered by the circular. The Court opined that although the RBI is vested with the power to form regulations from an act formulated by the parliament, the regulations cannot supersede the rights and freedoms guaranteed by the Constitution of India. The Court, thus, accepted the contention of the Petitioner and held that the Circular was disproportionate because none of the RBI’s regulated entities had ‘suffered any loss or adverse effect directly or indirectly, on account of the interface that the VC exchanges had with any of them.
The Supreme Court’s aforesaid judgment in Internet and Mobile Association of India v. Reserve Bank of India (2020) is a very small victory in favor of the crypto entities in India. Though the aforesaid judgment doesn’t completely adjudicate on the legality of cryptocurrency, however, the Supreme Court has acknowledged that a prohibitory approach and a blanket ban on the trade of cryptocurrencies stand in stark contrast with those countries having the same constitutional values as ours. Countries like China, Bangladesh, and Algeria have placed a ban on the purchase, sale, and use of virtual currencies, specifically, cryptocurrency, however, there are countries like Singapore, Canada and UK that have adopted a regulatory approach towards the trade-in cryptocurrencies.
Conclusion
The Parliament of India, having taken consideration of the same, put a hold on Cryptocurrency and Regulation of Official Digital Currency Bill, 2021 which was to be introduced aiming at prohibiting all the private cryptocurrencies and facilitating a regulatory framework for introducing the official digital currency which in turn would be issued by the RBI. Though Cryptocurrency is not illegal in India, however, nor is it regulated. The concern of the RBI and other stakeholders responsible for the financial stability of the country is justified and the need of the hour keeping in view the negative ramifications that cryptocurrency could lead to especially at the time where the country is fighting the Covid-19 pandemic as well as an economic downfall. India has a very good opportunity of studying the regulatory approach taken by other democratic countries and execute a regulatory architecture for a new digital world.
by LFIAdmin | Oct 26, 2021 | Home
By Nazaqat Lal, Advocate & Solicitor
nazaqat_lal@hotmail.com | Oct 26, 2021
Introduction
Section 8 of the Hindu Minority and Guardianship Act, 1956 (“the Act”) provides that sale or transfer of immovable property of a minor requires the natural guardian of such minor to take prior permission of court. The section further casts an obligation on the court not to provide such permission except in the case of necessity or for an evident advantage to the minor. Disposal of a minor’s immovable property without court’s prior permission is voidable at the instance of the minor or any person claiming under him. The intention of the Legislature to protect the property and interest of minors till the time they attain majority is abundantly clear.
Section 12 of the Act states that no guardian shall be appointed for the minor’s undivided interest in joint family or HUF property where such property is under the management of an adult member of the family. The question that naturally arises from a combined reading of these two sections is whether Section 8 of the Act is applicable to sale or transfer of joint family property by a Karta wherein a minor’s undivided interest is involved. Alternatively, is prior court permission required by the Karta at the time of sale or transfer of joint family property that involves a minor’s undivided share? This question was answered in the negative by the Bombay High Court[1] and Supreme Court of India[2].
The Bombay High Court placed reliance on Sections 4 and 6 of the Act to answer the aforesaid question. Section 4 defines the term ‘guardian’ and Section 6 sets out the natural guardians in the case of a Hindu minor and the order of priority of persons who are entitled to be guardians to Hindu minors.
Analysis
The opening words of Section 6 are as under.
“6. Natural guardians of a Hindu minor.—The natural guardians of a Hindu minor; in respect of the minor’s person as well as in respect of the minor’s property (excluding his or her undivided interest in joint family property), are— …” (emphasis supplied)
These words were interpreted and explained by the Bombay High Court as follows.
“7. …The words “excluding his or her undivided interest in joint family property” which have been put in brackets make it clear that undivided interest of a Hindu minor is excluded from the operation of the provisions of the Act and the subject-matter with which the Act deals is limited to guardians in respect of minor’s person or in respect of minor’s property other than his undivided interest in joint family property, whether they be natural guardians or testamentary guardians or guardians appointed or declared by Court. The concept of a guardian in respect of undivided interest in the joint family property is thus specifically excluded from the purview of the Act. The powers which a Hindu father therefore has, as a natural guardian of his minor sons under Hindu Law, are kept intact and are not in any way affected by the provisions of the Hindu Minority and Guardianship Act so far as the undivided interest of a Hindu minor in the joint family property is concerned.
- The restrictions contained in s. 8, therefore, do not apply in respect of the undivided interest of a minor in joint family property and consequently s. 8 does not debar the manager or karta of a joint Hindu family from alienating joint family property including the interest of minor without obtaining the previous permission of the Court, even if the manager or karta, happens to be the natural guardian in respect of the separate property of any one or more of the minor coparceners. Of course, the alienation would have to be justified under Hindu law but s. 8 does not require that any previous permission of the Court should be obtained before effecting such alienation. Under Hindu law a manager and karta of a joint Hindu family can alienate joint family property so as to bind the interest of minor coparceners in such property provided the alienation is either for legal necessity or for the benefit of the estate. If the manager and karta happens to be the father, he has certain additional powers of alienation under Hindu law and in exercise of those powers he can alienate joint family property so as to bind the interest of his minor coparceners in such property. These powers are not at all curtailed or affected in any way by the provisions of the Hindu Minority and Guardianship Act.”
The Supreme Court answered the question on similar lines.
“5. With regard to the undivided interest of the Hindu minor in joint family property, the provisions afore-culled are beads of the same string and need be viewed in a single glimpse, simultaneously in conjunction with each other. Each provision, and in particular Section 8, cannot be viewed in isolation. If read together the intent of the legislature in this beneficial legislation becomes manifest. Ordinarily the law does not envisage a natural guardian of the undivided interest of a Hindu minor in joint family of the property. The natural guardian of the property of a Hindu minor, other than the undivided interest in joint family property, is alone contemplated Under Section 8 where under his powers and duties are defined. Section 12 carves out an exception to the rule that should there be no adult member of the joint family in management of the joint family property, in which the minor has an undivided interest, a guardian may be appointed; but ordinarily no guardian shall be appointed for such undivided interest of the minor. The adult member of the family in the management of the Joint Hindu Family Property may be a male or a female, not necessarily the Karta. The power of the High Court otherwise to appoint a guardian, in situations justifying, has been preserved. This is the legislative scheme on the subject. Under Section 8 a natural guardian of the property of the Hindu minor, before the disposes of any immovable property of the minor, must seek permission of the court. But since there need be no natural guardian for the minor’s undivided interest in the joint family property, as provided Under Sections 6 and 12 of the Act, the previous permission of the Court Under Section 8 for disposing of the undivided interest of the minor in the joint family property is not required. The joint Hindu family by itself is a legal entity capable of acting through its Karta and other adult members of the family in management of the joint Hindu family property. Thus Section 8 in view of the express terms of Sections 6 and 12, would not be applicable where a joint Hindu family property is sold/disposed of by the Karta involving an undivided interest of the minor in the said joint Hindu family property. The question posed at the outset therefore is so answered.”
The Act has drawn a distinction between joint family property in which a minor has undivided interest and other property of a minor. Consequently, the rules applicable to sale and transfer of both types of property are also different; the latter being more stringent. However, in both cases, necessity and benefit of the minor or estate, as the case maybe, are a sine qua non.
Conclusion
While the Legislature has kept the interest of minors paramount, it has to also ensure that joint family property remains easily transferable. If Section 8 was applicable to sale and transfer of joint family property, thereby, requiring prior court permission to sell or transfer joint family property in which a minor’s undivided interest was involved, it would become very difficult to effect sales and transfers of joint family property as at most times, there would be at least one minor in the Hindu undivided family.
[1] Sakharam Sheku Shinde v. Shiva Deorao Jamale [1973 SCC OnLine Bom 89 : (1974) 76 Bom LR 267]
[2] Narayan Bal & Ors. v. Sridhar Sutar & Ors. [AIR 1996 SC 2371 : (1996) 8 SCC 54]
by LFIAdmin | Oct 6, 2021 | Home
By Isha Thakur, Advocate
ishav1998@gmail.com | Oct 06, 2021
“Life sans dignity is an unacceptable defeat and life that meets death with dignity is a value to be aspired for and a moment for celebration.” – CJI Dipak Misra
The concept of right to life as envisaged under Article 21 of the Indian Constitution is ‘the procedural Magna Carta protective of life and liberty, as recognized and classified by Justice V.R. Krishnan Iyer in 2007. Such right constituting the heart of the Constitution of India is not just restricted to the act of simply being alive or animalistic existence but emphasizes the right to lead a life with basic human dignity and decency. Over the years, through the way of progressive precedents established by the Honorable Courts in India, the right to life under the Constitution of India has received the broadest possible interpretations thereby establishing and attaching several aspects and facets to it and emphasizing the minimum standards of quality required to live a meaningful life. However, at the same time, there arises a need to acknowledge certain circumstances where some individuals desire to put an end to their lives attributable to the slow degradation of the quality of life. Therefore, the primary question that arises here is if a person has the inherent right to lead a dignified life, would he be entitled to a dignified procedure of death as well?
With the progression of law, the postulation of individual autonomy has gained much significance and has been identified as an essential aspect of human dignity across various jurisdictions. The Right to die is a concept that is based on the opinion that a human being is entitled to make any decision about ending his or her life. Possession of this right is often associated and understood to mean that a person with a terminal illness or without the will to continue living, should be allowed to end their own life or to decline life-prolonging treatment. Right to die or as popularly also known as euthanasia has always been a matter of debate not only in India but in all the countries around the world. While some of the countries have legalized Euthanasia completely, both active and passive, some have different stands on both, partially legalized and some have totally banned and condemned the mere practice of it.
The Supreme Court of India, in the case of Common Cause (A Regd. Society) v. Union of India, while institutionalizing and recognizing the right to die with dignity as an essential facet of the right to live with dignity under Article 21, has emphasized the importance of individual autonomy and self – determination to enable people to execute living wills and attorney authorizations that would be indicative of a person’s choice to discontinue treatment on a later stage if they are terminally ill or in a permanent vegetative state. Therefore, while on one hand, the right to life creates a compelling state interest in preserving human life, on the other hand, it also assures the individual autonomy to make decisions with respect to his/her own body.
The Petitioner in the present case is a registered society who had written to several authorities and state governments with respect to the entitlement of the essential right to die. On receiving no response from such authorities, in 2005, it filed a public interest litigation before the Supreme Court of India on the grounds of:
- seeking direction for legal recognition of living will;
- for the system of certification of passive euthanasia; and
- praying for the declaration that the Right to die with dignity is an essential aspect of Article 21 of the Indian Constitution.
Considering the inconsistent opinions in Aruna Shanbaug v. Union of India (2011) and Gian Kaur v. State of Punjab (1996) with respect to the aforementioned right and euthanasia, the matter was referred to a five-judge bench. The judgment was delivered pursuant to extensively considering the law pertaining to the right to life and right to die along with relevant precedents and the international position in various jurisdictions, the Supreme Court enumerated the following conclusions:
Death with dignity
The Constitution Bench held that the right to life indicates the existence of such right extends up till the end of natural life, thereby establishing a dignified procedure of death. The right to life and liberty would be meaningless unless it encompasses within its sphere individual autonomy and dignity, hence, the said right was held to be part of fundamental right enshrined under Article 21 of the Constitution. The Court held that the right to life includes smoothening of the dying process of a terminally ill person or who is in a constant vegetative state without any hope of recovery.
Passive and Active Euthanasia
The Supreme Court has laid down that the interest of a terminally ill patient or in a persistent vegetative state shall override the interest of the State in protecting the lives of its citizens. Such an individual can make a choice of premature extinction of his life as an inherent right under Article 21. The Constitution Bench, however, clarified that Article 21 covers within its ambit only passive euthanasia and not active euthanasia. While legalizing and permitting the process of passive euthanasia, the Court noted a distinction between cases in which physician decides not to provide or continue to provide for treatment and care, which could or might prolong his life, and those in which he decides to administer a lethal drug even though with the object of relieving the patient from pain and suffering.
Living Will, Attorney Authorisations, and Advanced Directives
An advance medical directive is an individual’s advance exercise of his autonomy on the subject of the extent of medical intervention that he wishes to allow upon his own body at a future date, when he may not be in a position to specify his wishes. The right to execute an advance medical directive is a step towards the protection of aforesaid rights by an individual. The Court recognized Advance Directives akin to a Living Will through which persons of sound mind and in a position to communicate, relate and comprehend can indicate the decision relating to the circumstances in which withholding or of medical treatment can be resorted to.
Guidelines for executing Living Wills
An adult of sound mind and having the capacity to communicate, relate and comprehend the consequences of executing the document, without any form of coercion or compulsion, may voluntarily execute such a written document in the presence of two independent attesting witnesses. Such document must clearly reflect informed consent and unambiguously instruct as to when medical treatment may be withdrawn and must specify which treatments are not to be administered. Further, it should state the name of a guardian who will give consent to withdraw treatment in accordance with the advance directive. The document must be signed by a Judicial Magistrate of First Class (JMFC) and one copy of such document is preserved by the JMFC in his office, in addition to keeping it in digital format. The JMFC after satisfying himself with the informed consent of the executor and the contents of the document forwards a copy of the same to the Registry of the jurisdictional District Court for registration and preservation.
Procedure for executing Advanced Directives
The treating physician of the patient shall refer the matter to the concerned hospital who shall constitute a Medical Board consisting of the Head of the Treating Department and at least three experts with experience in critical care and with overall standing in the medical profession. The decision of the Medical Board, after examining the patient, shall be communicated to the Jurisdictional Collector who shall then constitute another Medical Board comprising the Chief District Medical Officer as the Chairman and three expert doctors. If on visiting the patient, this board is in consonance with the opinion of the board constituted by the hospital, the decision will be communicated to the JMFC. The JMFC will then visit the patient at the earliest to authorize the implementation of the document.
The Supreme Court in the present case has through this judgment endeavored to balance two facets of Article 21. One thing which every man deserves in his life is the Right to life as well as the Right to die with dignity. The sanctity of human life does not imply the forced continuation of existence in pain and suffering. For a person suffering from a terminal illness with no hope of recovery, it would be inhumane to compel him to continue to live a painful life. These instances are not of extinguishing life but only of accelerating the process of natural death, which has already commenced.
by LFIAdmin | Oct 31, 2021 | Home
By Nazaqat Lal, Advocate and Solicitor
nazaqat_lal@hotmail.com | Nov 01, 2021
Section 63 of the Indian Succession Act, 1925 (“the Act”) requires a will to be attested by at least two witnesses. The attesting witnesses must sign or affix their thumb impression or mark, in the presence of the testator. The section does not permit or provide for delegation of such power by the attesting witnesses.
Unlike other documents, a will speaks from the death of the testator. By executing a will, a testator intends to the living the carrying out of his wishes after his death. Therefore, the initial burden of proving the due execution, attestation, genuineness of the will and sound mind of the testator falls on the attesting witnesses.
Section 67 of the Act deals with the effect of gift to an attesting witness. It states that any benefit or bequest given to an attesting witness or the attesting witness’s spouse, shall be void. However, a legatee under a will does not lose his legacy by attesting a codicil which confirms the will. The object of Section 67 is to avoid chances of possible collusion or undue influence. It is pertinent to note that benefit or bequest given to an attesting witness does not affect the validity of the will and the will shall be deemed to sufficiently attested.
Another important aspect is the applicability of Section 67 of the Act. Section 67 does not apply to wills made by Hindus, Buddhists, Sikhs or Jains. Therefore, any benefit or bequest to an attesting witness or the attesting witness’s spouse under a will made by a Hindu, Buddhist, Sikh or Jain would not be void. In the case of Jose v. Ouseph & Ors.[1], a Division Bench of the Kerala High Court explained the applicability of Section 67 as follows.
“7. Section 67 of the Indian Succession Act, 1925 deals with the effect of gift to attesting witness. This Section is not applicable to Wills of Hindus by virtue of Section 57 read with Schedule III of the Indian Succession Act and as such legatees under the Will of such persons do not forfeit their legacy on becoming attesting witnesses. But in the case on hand the parties are Christian and Section 67, if attracted, will be applicable to them. Legacy to the attesting witness of a Will is void under Section 67…”
This decision of the Kerala High Court was followed by the Delhi High Court in the case of Anand Burman v. State[2].
“7. The learned counsel for the petitioner, however, points out that Section 67 of the Indian Succession Act is placed in Part-VI of the said Act and Section 57 of the Act, which deals with applicability of the said part, to the extent it is relevant, specifically provides that only those provisions of the said part which are set out in Schedule-III shall, subject to the restriction and modification specified therein, apply to the Will and Codicils made by any Hindu, Buddhist, Sikh or Jain made on or before 1.1.1927. He further points out that Chapter-III of the said Act does not refer to Section 67 of the Act which clearly shows that the aforesaid provisions do not apply to the Will in question. He further pointed out that Section 58 of the Act clearly provides that provisions of Part-VI shall not apply to testamentary succession to the property of any Hindu, Buddhist, Sikh or Jain save and except as provided in Section 57 of the Act. The net effect of these provisions, when read together, is that the bequest made to the attesting witnesses of the Will, executed by a Hindu, is not void under Section 67 of the said Act. Therefore, the bequest made to the petitioner is not void. As regards his competence as an attesting witness, Section 68 of the said Act specifically provides that no person, by reason of interest in, or of his being an executor of, a Will shall be disqualified as a witness to prove the execution of the Will or to prove the validity or invalidity thereof. Therefore, Shri Ashok Chand Burman was a competent witness to prove execution of the Will executed by late Smt. Sudha Burman.” (emphasis supplied)
This contention was accepted by the Delhi High Court and reliance was placed on Jose v. Ouseph & Ors. (supra). Accordingly, probate was granted by the Delhi High Court.
[1] AIR 2007 Kerala 77
[2] Test. Cas 25/2010, Judgment pronounced on July 27, 2012
by LFIAdmin | Sep 9, 2021 | Home
By Rishit Vimadalal, Advocate
rishit@vimadalal.in | Sep 09, 2021
The purchase of any videogame comes with an implicit promise to transport you from your home to the virtual reality within your television screen. Developers are constantly looking to incorporate maximum authenticity and reality into their products; this involves the replication of real names, designs, structures, trademarks, and many other key components from the real world into the virtual one.
Videogame developers have been increasingly using these trademarks in their games both with and without express licensing from the trademark right holders. The development of e-sports and online gaming have also led to an unauthorised development and expansion of games ordinarily sold in the market. In India, there is no statutory categorisation of videogames, and the sparse case laws have done little to settle this uncertainty. However, such trademark usage in virtual worlds has led to several high-profile infringement battles in the United States, and other developed intellectual property jurisdictions.
Position in the United States
In 2011, in Brown v. Entertainment Merchants Association, the United States Supreme Court observed that video games were expressive works, like films and books, and could be given protection as free speech under the First Amendment to the U.S. Constitution.[1] Hence, the 1989 Rogers v. Grimaldi test was extended by several Courts to balance the free speech and trademark protection afforded to videogames. The Rogers test aims to establish whether the used trademark is artistically relevant to the defendant’s work, and whether it is intentionally misleading.[2] The free speech and fair use protection extended to trademarks have been mentioned in Section 1125 of The Lanham Act (Trademark Act of 1946).[3]
In E.S.S. Entm’t 2000, Inc. v. Rock Star Videos, Inc., the dispute revolved around alleged trademark infringements in the popular videogame Grand Theft Auto: San Andreas. The defendants had incorporated a popular adult entertainment club Play Pen into their game, naming it as Pig Pen, and adopting its architectural features and trade dress. The district court and subsequently the Ninth Circuit Court, upheld the free speech protection of the defendants after applying the Rogers test. It felt that this usage was artistically relevant in recreating areas of Los Angeles in the game, and that nothing indicated the connection of the plaintiff with the game to intentionally mislead users.[4]
In the recent case of AM General LLC v. Activision Blizzard, Inc before the District Court of Southern New York, a dispute arose regarding the usage of the High Mobility Multipurpose Wheeled Vehicle (colloquially known as the Humvee) in Call of Duty games.[5] The Court used the Rogers test to hold that the usage of realistic military vehicles in videogames to simulate a warlike environment fulfilled the artistic relevance criteria of the test. It also stated that since the defendants did not dispute the plaintiff’s Humvee mark, and the lack of significant confusion amongst users regarding the mark did not amount to deliberate misleading. It felt that in the tussle between likelihood of confusion and First Amendment free speech rights, the latter would outweigh the former in the present circumstances; there seemed to be no trademarked use of the mark and no association with the origin of the symbol with the plaintiff.
Position in India
Section 30 of The Trade Marks Act, 1999 provides certain exceptions where nominative and descriptive fair use could be implicitly applicable to such scenarios. Section 30 (2)(a) provides for descriptive fair use, where the originally registered trademark could be used as a description to describe the defendant’s own goods or services. Section 30 (2)(d) discusses nominative fair use where the mark of the registered owner is used to refer to the owner’s products themselves.
Indian High Courts[6] have considered nominative fair use in certain trademark infringement matters, and have considered factors such as nature of use, intention of creating an association, consumer confusion, and the mode of use in deciding their ruling.[7] In India, the lack of a particular classification of video games signifies the relatively underdeveloped nature of law related to gaming in India.[8] In Tata Sons v. Greenpeace International, the Delhi High Court was faced with a scenario where the defendants were using their registered Tata trademark in a game. The game consisted of turtles escaping the Tata logo in the style of the popular video game Pacman. In balancing the commitments of the law under Freedom of Speech and Expression, the Court considered that the commercial or communicative intent of the speech would be considered and the fact that this game was in the nature of a parody. In this case, the trademark was used as a method of criticising Tata and hence this would not constitute infringement.[9]
Need for Evolution
In 2017, the release of Player Unknown’s Battlegrounds (PUBG) on multiple platforms created waves in the Battle Royale genre. This game, due to factors like device compatibility and multitude of platforms, has greatly penetrated the India games market. It was observed that this game, in its virtual environment, had made use of Mahindra 265 DI tractors along with the trademark in order to depict a semi-urban setting. Mahindra Tractors did not object to this usage, but in different circumstances, a legal battle could have been a possible outcome.
It is essential that Indian law evolves with technology to avoid such legal uncertainty. In the United States, the Rogers test has been widely used in adjudicating the usage of trademarks within video games but is still not binding on all Circuit Courts because of no authoritative Supreme Court pronouncement. This uncertainty should also serve as a caution to developers to take the necessary legal precautions before constructing their virtual environments. A timely expansion of Indian law on this subject, on the cues of more developed IP jurisdictions, would ensure a more consistent balancing of IP rights along with constitutional guarantees.
[1] 131 S. Ct. 2729.
[2] 875 F.2d 994 (2d Cir. 1989).
[3] 15 U.S.C. § 1125.
[4] 547 F.3d 1095 (9th Cir. 2008)
[5] S.D.N.Y., No. 17-8644.
[6] Hawkins Cookers Ltd. v. Murugan Enterprises, (2012) 189 DLT 545.
[7] Consim Info Private Limited v. Google India Private Limited, [2013 (54) PTC 578 (Mad)].
[8] Ramos, Andy, Anxo Rodríguez, Stan Abrams, and Tim Meng. “The Legal Status of Video Games: Comparative Analysis in National Approaches.” World Intellectual Property Organisation, July 29, 2013. https://www.wipo.int/publications/en/details.jsp?id=4130&plang.
[9] 178 (2011) DLT 705.
