MERE USE OF TRADEMARK IN AN ARTICLE DOES NOT AMOUNT TO FALSE APPLICATION

by LFIAdmin | Apr 29, 2021 | Uncategorized

By Heena Thalesar, Advocate

heenathalesar2233@gmail.com | April 28, 2021

BACKGROUND OF THE CASE:-

Recently, in a judgement delivered by the Hon’ble Bombay High Court in Prateek Chandragupt Goyal vs. State of Maharashtra and others (Criminal Writ Petition No. 62 of 2021), it has quashed an FIR registered by Pune City Police against one Journalist Mr. Prateek Chandragupt Goyal for using logo of “Sakal Media Group” in two articles which were published on 27 March 2020 and 11 June 2020 respectively on an online news portal “news laundry”. The case was registered at Vishrambag Police Station at Pune for an offence under Section 103 of Trademarks Act, 1999.

FACTS OF THE CASE: –

In the present case, the Petitioner sought quashing of FIR and further contended that the ingredients of the said offence are not made out in the facts and circumstances of the present case and that, therefore, the FIR deserves to be quashed. The Petitioner is a Journalist working with online news portal ‘News laundry’. It is stated that he had earlier worked with other Media entities, including ‘Sakal Times’. According to the Petitioner, he specializes in investigative journalism and that he has been working in this field since the year 2012. The FIR has been registered against the Petitioner at the behest of Respondent No.2 (original informant), who is the Chief Administrative Officer of Sakal Group, that publishes newspapers in Marathi language called ‘Sakal’ and in English language called ‘Sakal Times’. The Respondent No. 2 approached the Police for registration of FIR on 16th September, 2020 claiming that the Petitioner committed the above offence by falsely applying trade mark of Sakal Group in two articles authored by him and published in the aforesaid news portal called ‘News laundry’. The two articles were published on 27th March, 2020 and 11th June, 2020.He further contended that in the said articles, the registered trade mark of the Sakal Media Group and Sakal Times was shown with prominence at the top. In the article published on 27th March, 2020, the heading was ‘The future is bleak: Sakal Times staffers say they have been sacked in violation of Maharashtra Order’. In the article published on 11th June, 2020, the heading was ‘They wanted to get rid of us: over 50 people laid off as Sakal Times closes down’. According to Respondent No.2 these were highly defamatory articles against Sakal Media Group and that use of the official logos / trade mark of the Sakal Media Group and Sakal Times on these articles clearly amounted to falsely applying the said trade mark, thereby resulting in commission of an offence under Section 103 of the Trademark Act, 1999. In the FIR, it was stated that the offence was committed from 27th March, 2020to 11th June, 2020and, as noted above, the FIR, stood registered after three months on 16th September, 2020. It is significant that prior to lodging the complaint, leading to registration of FIR, a legal notice dated 12th June, 2020, was sent to the Petitioner alleging that the Sakal Media Group was defamed by him and an amount of Rs.65,00,000/- was claimed from him. 19th June, 2020, the Petitioner sent a reply to the said legal notice. On 03rd September, 2020, the Sakal Media Group filed a suit for injunction against the News laundry Media Pvt. Ltd. seeking an injunction against the said defendant and the Petitioner for removing the said articles from the news portal. The present writ petition was filed in October 2020, wherein notice was issued and it was directed that while the investigation shall continue, the charge sheet could be filed only with the leave of this Court. Thereafter, on 27th January, 2021, this Court recorded statement made on behalf of the Petitioner that he would appear before the Investigating Officer on a specific date and it was directed that the Investigating Officer shall not insist for production of laptop and hard disk by the Petitioner.

CONTENTION OF THE PETITIONER: –

The trade mark of Sakal Media Group was shown in the articles written by the Petitioner and published on the news portal ‘News laundry’, only to indicate that those specific articles pertained to the Sakal Media Group. In these circumstances, there was no question of the said trade mark being falsely applied to any goods or services, so as to attract the ingredients of the aforesaid offence. Additionally, and without prejudice to the aforesaid submissions, the learned Senior Counsel for the Petitioner submitted that the action of the Petitioner was protected as a nominative fair use of the trade mark of Sakal Media Group under Section 30(1)(a) and (b) of the Trademarks Act, 1999.

CONTENTION OF THE RESPONDENTS: –

Learned Counsel appearing for Respondent No.2 submitted that admitted facts in the present case demonstrated that ingredients of the offence under Section 103 of the aforesaid Act were prima facie made out and there was no question of quashing of FIR. By referring to Section 103 of the aforesaid Act, the learned Counsel appearing for Respondent No.2 submitted that in the present case, the Petitioner had clearly falsely applied the registered trade mark of Sakal Media Group by prominently showing the mark on articles published on the news portal ‘News laundry’. It was submitted that when the word ‘Sakal’ was clicked on online search, it led to the said articles authored by the Petitioner and published on the news portal ‘News laundry’, thereby demonstrating that the offence under Section 103 of the said Act was indeed committed in the present case. The learned Counsel emphasized upon Section 102(2)(b) of the said Act in support of the said contention and submitted that since Sakal Media Group and the news portal ‘News laundry’ were in the same segment of providing news services, the offence was clearly committed in the facts and circumstances of the present case. The learned Counsel for the Respondent No.2 relied upon judgment of the Madras High Court in the case of Consim Info Pvt. Ltd. Vs. Google India Pvt. Ltd. and Ors. 2010(6) CTC 813 and judgment of Delhi High Court in Hawakins Cookers Ltd. Vs. Murugan Enterprises 2012 SCC OnLine Del 2118. It was further submitted that merely because Respondent No.2 had filed a Civil suit for injunction against News laundry Media Private Limited, it could not result in the criminal proceedings being terminated at this stage.

JUDGEMENT:-

The Hon’ble High Court held that “Mere use of the registered trade mark of the Sakal Media Group in articles authored by the Petitioner and published by the news portal ‘News laundry’, do not fit into the definition of false application of the trade mark in relation to goods or services.” It is an admitted position that the articles were published in the online news portal ‘News laundry’ and there was no suggestion that the said news portal itself was that of ‘Sakal’. Merely because an online search for the word ‘Sakal’ led to the aforesaid articles of the Petitioner published in the news portal ‘News laundry’, does not mean that the registered trademark of Sakal Media Group was falsely applied to goods or services by the Petitioner. At worst, it could be said that such an online search leading to the aforesaid articles might be the subject matter of an injunction suit at the behest of Sakal Media Group due to the contents of the said articles, but, that falls within the realm of a civil dispute that could be raised by Pisal. In fact, Pisal did issue a Notice on behalf of the Sakal Media Group (claiming Rs 65 lakh for defamation) and chose to file a suit for injunction before the competent Civil Court, which is pending.

CONCLUSION:-

For use of registered trademark of the Sakal media group in the article authored by Prateek Gupta Goyal and published by the news portal news laundry do not fit into the definition of false application of the trademark in relation to goods and services.

POWER OF APOLOGY IN MEDIATION

by LFIAdmin | Apr 25, 2021 | Uncategorized

By DHRUTI M KAPADIA-ADVOCATE, SOLICITOR, ADVOCATE-ON-RECORD, SUPREME COURT OF INDIA & MEDIATOR

kapadiadhruti@gmail.com| April 24, 2021

“A WORD OF APOLOGY CAN HELP RESOLVE DISPUTES –IT IS WORTH THE TRY THAN HOLDING UPON EGOS TO CONTINUE THE DISPUTES-LEARN TO APOLOGISE IF YOU REALLY DESIRE TO RESOLVE THE DISPUTE”

Introduction:

When the mind tricks up and makes one realize that they have done a mistake than one must have the guts to admit it to the person wronged which can psychologically help relieve the pressing guilt that built over time.

The prime step in mending a relationship which is broken is by attempting to move towards a sorry-apology as it will help move forward in re-building the trust broken and will be step climbing up to sooth the communication relationship between each other.

The ease one gets by hearing another person say sorry is pretty comforting in the mind and it leads to step forward for opening dialogues , clearing out bitterness towards each other and also will help playing on stuffed emotions between the each other.

Why people Apologize?

Apology is also a healing tool and brings in good gestures between the parties. It says that you share values regarding appropriate behavior towards each other, that you have regrets when you don’t behave according to those values (intentionally or unintentionally), and that you will make greater efforts to live up to your shared standards of behavior. Timing can be crucial. An apology delayed may be an opportunity lost.

Generally it is human nature that when they are hurt or humiliated they often hope for an apology. They may hope that an apology from the person who caused them harm will restore dignity, trust, and a sense of justice. Whether you are requesting an apology or considering giving one, it is important to realize that a thoughtful apology can mend a relationship while a thoughtless one may cause further conflict.

Finally, the good apology is a gift to the relationship. Two people can feel secure in the knowledge that if they behave badly, even fight terribly, they can repair the disconnection. We strengthen our relationships when others know that we’re capable of reflecting on our behavior, that we’ll listen to their feelings, and that we’ll do our best to set things right.

Example of how to put forth Apology:

You could say: “I’m sorry that I used derogatory language at you yesterday at dinner party. I feel embarrassed and ashamed by the way I acted.”

To resolve the issue by apology, your words need to be sincere and authentic. Be genuine and honest with yourself, and with the other person, about why you want to apologize and then only you can expect the other person to let go or forgive.

In mediation the most compelling apology would consist of 6 main elements:

 Expression of regret
 Explanation of what went wrong
 Acknowledgment of responsibility
 Declaration of repentance
 Offer of repair
 Request for forgiveness

Why People don’t apologize?

Main reason why people don’t apologize is because they are afraid the apology will be seen as a sign of weakness and/or guilt. But in reality, an apology indicates great strength as it is a munificent act that restores and rehabilitates the self concept of the offended party.

Therefore in mediation apology mediator and parties must make an attempt to move forward the sessions with apology it may be as simple as resolving a dispute at home by saying a sorry and conflict between the parties may end.

Apology Advice to Clients:

One road leads toward anger, fear, hate confrontation, bitterness, and revenge, and pushes forward towards disputes and heavy litigation.

A second leads moves towards empathy, acceptance, honesty, collaboration, and mutual respect; it draws the ropeway into negotiations to resolve the disputes.

Yet there is a still deeper third road that is largely hidden from many of the clients who come for advice , this is a very sensitive area which needs efforts to move into insight, discovery, wisdom, affection, and heartfelt communications; which enables them to mirror reflect their present. This method encourages the client to apologize; reach forgiveness; seek release, renewal, and reconciliation. It allows us to sustain openhearted relationships. It wakes them up, makes them more mindful of their own reflection and others. It nurtures them towards the session of mediation where they get prepared to apologize. This is the path of transformation and transcendence, of wisdom and heart. As their legal advisor it is essential we advice our clients that revenge is complex whereas apology, forgiveness, and reconciliation are simple, yet powerful transformative tools, and doorways to inner and outer peace in mediation.

This advice and efforts should be continuous while setting up mediation session or during the sessions at times it may be nearly unnoticeable but this advisory tool on apology to be powerful can integrated into every kind of mediation practice. They can help free clients from the past and allow them to reach closure, to let go of whatever has kept them trapped in conflict, and move in healthier, more positive directions, towards deeper levels of resolution and relationships with the other side.

Conclusion:

Tool of apology can be used by mediator to make parties feel comfortable to apologize or even by attorneys to advice the parties in mediation wherein resolving complex multi-party conflicts which include: matrimonial disputes, community, grievance and workplace disputes, collective bargaining, negotiations, organizational and school conflicts, sexual harassment , commercial disputes and public policy disputes.

EMERGENCY CREDIT LINE GUARANTEE SCHEME 3.0

by LFIAdmin | Apr 23, 2021 | Uncategorized

By Esha Malik, Advocate

eshamalik322@gmail.com | April, 23 2021

In view of the second wave of COVID-19 Pandemic in India and its impact, the Government of India has under its Atmanirbhar Bharat Initiative decided to extend its Emergency Credit Line Guarantee Scheme (ECLGS) 1.0 and 2.0 by introducing ECLGS 3.0 for a period of three months i.e. 30th June, 2021 with more advanced and business uplifting changes proposed in the revised scheme.

ECLGS 3.0 is an amended government scheme designed to provide additional support to various stressed service sectors amid the unprecedented Second Wave of COVID-19 and the subsequent lockdown once again to help sustain employment, meet liabilities and reduce the pressure to meet working capital requirements, in turn reviving the Indian economy.

Earlier, the ECLGS Scheme was available to MSME’s only which later was amended through ECLGS 2.0 including 26 stresses sectors. The new ECLGS 3.0 will cover within its fold additional business enterprises in the Hospitality, Travel and Tourism, Leisure and Sporting sectors as identified by the K. V. Kamath Committee having as on 29-02-2020, a total credit outstanding not exceeding Rs. 500 Crores and overdue, if any being less than 60 days from the date i.e. 29-02-2020. However, loans provided in individual capacity will not be covered under this Scheme. Further, borrower accounts declared as NPA or SMA-2 status as on 29-02-2020 shall not be eligible for availing benefit under the Scheme.

ECLGS was first valid until October, 2020 and later extended from time to time last being March, 2021 and now by introducing the ECLGS 3.0 until 30th June, 2021.

Key Highlights of ECLGS 3.0:-

(i) Addition of Additional Credit i.e. 40% outstanding across all lending institutions as on 29-02-2020 as against earlier 20% outstanding overdue;

(ii) Entities to be upto 60 days past overdue as against 30 days under ECLGS 2.0;

(iii) The tenor for such a 100% collateral free loan has been extended upto 6 years with moratorium period of 2 years as against 5 years with Moratorium period of 1 year on principal re-payment;

(iv) Validity of ECLGS 1.0, 2.0 are extended till 30-06-2021 or until Guarantees of Rs. 3 Lakh Crore are issued;

(v) Introduction of Incentives to Member Lending Institutions (MIL’s) like Banks, NBFC’s and other lending institutions to enable availability of funding facility to the eligible beneficiaries providing 100% guarantee by National Credit Guarantee Trustee Company (NCGTC) to such Member Lending Institutions (MLIs).

To conclude, this forward-looking vision and progressive amendment by Government of India is very well appreciated and looked upon by all the eligible stressed sectors hit by the second wave of the Pandemic for a major relief amid the second lockdown and shall also pose a great support to not only businesses but also shall go a long way “in contributing to economic revival, protecting jobs, and creating conducive environment for employment generation” where people are looking for more meaningful roles to play.

ENTRIES IN BALANCE SHEET AMOUNTING TO ACKNOWLEGMENTS OF DEBT UNDER SECTION 18 OF THE LIMITATION ACT AND ITS APPLICABLILITY TO INSOLVENCY AND BANKRUPTCY CODE

by LFIAdmin | Apr 19, 2021 | Uncategorized

By Manish Doshi, Advocate

manish@vimadalal.in | April, 19 2021

In a recent judgement delivered by the Hon’ble Supreme Court of India, in Asset Reconstruction Company (India) Limited v. Bishal Jaiswal & Anr, important questions arose for the consideration of the Court:-

A. Whether Section 18 of the Limitation Act, 1963 [“the Limitation Act”], which extends the period of limitation depending upon an acknowledgement of debt made in writing and signed by the corporate debtor, is also applicable under Section 238A of the Insolvency and Bankruptcy Code, 2016 [“the IBC”] given the expression “as far as may be” governing the applicability of the Limitation Act to the IBC?

B. Whether an entry made in a balance sheet of a corporate debtor would amount to an acknowledgement of liability under Section 18 of the Limitation Act?

C. To examine the position under the Companies Act, 2013 [“Companies Act”] qua any compulsion of law for filing of balance sheets and acknowledgements made therein;

D. To examine the legality of the National Company Law Appellate Tribunal (NCLAT) judgment in V. Padmakumar v. Stressed Assets Stabilisation Fund, where it was held that that entries in balance sheets would not amount to acknowledgement of debt for the purposes of extending limitation under Section 18 of the Limitation Act.

The undisputed and controverted facts are that in 2009, the Corporate Debtor setup a thermal power project in Jharkhand and for doing so availed loans from various lenders. The account of the corporate debtor was declared as a non-performing asset by one of the lender on 31-7-2013 and issued a loan recall notice on 27-3-2015. On 31-3-2015, some of the original lenders assigned the debts owed to them by the Corporate Debtor to the Appellant Asset Reconstruction Company (India) Limited (ARCIL). ARCIL issued a notice under Section 13(2) of the SARFAESI Act and took actual physical possession on 1-6-2016. ARCIL filed an application under section 7 of IBC before the National Company Law Tribunal, Calcutta (NCLT) for default in payments and as the relevant form indicating the date of default did not indicate any such date, ARCIL filed a supplementary affidavit specifically mentioning the date of default and annexing copies of balance sheets of the corporate debtor, which, according to ARCIL acknowledged periodically the debt that was due. On 19-2-2020, a Section 7 application was admitted by the NCLT by observing that the balance sheets of the corporate debtor wherein it acknowledged its liability were signed before the expiry of prescribed period of three years from the date of default and entries in such balance sheets being acknowledgments of the debt due for the purposes of section 18 of the Limitation Act and Section 7 application is not barred by limitation. The Corporate Debtor, in appeal filed before the NCLAT, relied upon the judgment V. Padmakumar of the NCLAT where , it had been held that entries in balance sheets would not amount to acknowledgement of debt for the purpose of extending limitation under Section 18 of the Limitation Act. However, on 25-9-2020 another bench of the NCLAT doubted the correctness of the Full Bench judgment and suggested the constitution of another Bench to reconsider the judgment in V. Padmakumar (supra). However, the Five-Member Bench of the NCLAT, vide impugned Judgment dated 22-12-2020, refused to adjudicate the question stating that the reference to the Bench was itself incompetent; subsequently, the matter reached the Supreme Court by way of appeal. The first question before the Supreme Court was, whether Section 18 of the Limitation Act, which extends the period of limitation depending upon an acknowledgement of debt made in writing and signed by the corporate debtor, was also applicable under Section 238A given the expression “as far as may be” governing the applicability of the Limitation Act to the IBC.

While dealing with aforesaid questions, the Supreme Court adverted to the rationale for the enactment of 238A of the IBC [1], which reads as under:

238A. Limitation.—The provisions of the Limitation Act, 1963 (36 of 1963) shall, as far as may be, apply to the proceedings or appeals before the Adjudicating Authority, the National Company Law Appellate Tribunal, the Debt Recovery Tribunal or the Debt Recovery Appellate Tribunal, as the case may be.

The Supreme Court has also considered various judgments [2] wherein the Report of the Insolvency Law Committee of March, 2018 observing that though the IBC is not a debt recovery law, the trigger being “default in payment of debt” would render the exclusion of the law of limitation as “Counter-intuitive” and have come to conclusion that the question of sections 14 and 18 of the Limitation are applied in the IBC and is no longer res integra.

The Supreme Court has also considered second question “whether an entry made in a balance sheet of a corporate debtor would amount to an acknowledgement of liability under Section 18 of the Limitation Act”.

While considering the aforesaid question, it is recorded by the Supreme Court that several judgments of the Supreme Court have indicated that an entry made in the books of accounts, including the balance sheet, can amount to an acknowledgement of liability within the meaning of Section 18 of the Limitation Act.

The Supreme Court has also examined the position under the Companies Act qua any compulsion of law for filing of balance sheets and acknowledgements made therein.

While considering the aforesaid questions, the Supreme Court reproduced certain sections [4] of the Companies Act and concluded that there is no doubt that the filing of a balance sheet in accordance with the provisions of the Companies Act is mandatory and any transgression of the same being punishable by law. It is also recorded that notes that re annexed to or forming part of such financial statements are expressly recognised by section 134(7) of the companies act and equally, the auditor’s report may also enter caveats with regard to acknowledgements made in the books of accounts including the balance sheet. The said statement of law contained in Bengal Silk Mill [3]. The Hon’ble Court has also considered various judgments [5] passed by various courts on the aforesaid proposition and concluded that decision of full bench in V. Padmakumar (supra) is contrary to the aforesaid catena of judgments and holds that entries in balance sheets would amount to acknowledgement of debt for the purposes of extending limitation under section 18 of the Limitation Act.

[1] Babulal Vardharji Gurjar v. Veer Gurjar Aluminium Industries (P) Ltd., (2020) 15 SCC 1

[2] Mahabir Cold Storage v. CIT, 1991 Supp (1) SCC 402; A.V. Murthy v. B.S. Nagabasavanna, (2002) 2 SCC 642

[3] Bengal Silk Mills Co. v. Ismail Golam Hossain Ariff, 1961 SCC OnLine Cal 128 : AIR 1962 Cal 115;

[4] Section 2(40) “financial statement”; Section 92-Annual return; Section 128-Books of account etc., to be kept by company; Section 129-Financial Statement; Section 134-Financial Statement, Board’s report etc; Section 137-Copy of financial statement to the filed with Registrar;

[5] South Asia Industries (P) Ltd. v. General Krishna Shamsher Jung Bahadur Rana, 1972 SCC OnLine Del 185; Pandam Tea Co. Ltd., 1973 SCC OnLine Cal 93; Hegde & Golay Limited v. State Bank of India, 1985 SCC OnLine Kar 428; Bhajan Singh Samra v. M/s. Wimpy International Ltd., 2011 SCC OnLine Del 4888; CIT-III v. Shri Vardhman Overseas Ltd., 2011 SCC OnLine Del 5599; Shahi Exports Pvt. Ltd. v. CMD Buildtech Pvt. Ltd., 2013 SCC OnLine Del 2535; N.S. Atwal v. Jindal Steel and Power Ltd., 2013 SCC OnLine Del 3902; M/s. Al-Ameen Limited v. K.P. Sethumadhavan, 2017 SCC 50 OnLine Ker 11337; Zest Systems Pvt. Ltd. v. Center for Vocational and Entrepreneurship Studies, 2018 SCC OnLine Del 12116; Agni Aviation Consultants v. State of Telangana, 2020 SCC OnLine TS 1462;