One Nation One Ombudsman

*(By Dr.Syamjith Parakkott)

The customer complaints are inevitable in any business, especially in banking, where people entrust their money and valuables into the custody of the Bank. Many often, Banks are being bogged down by rising customer complaints. Today, Banks accord top most priority in resolution of customer complaints. In this context, to support banksand customers in easy resolution of the complaints, the Reserve Bank of India has introduced the concept of “One Nation One Ombudsman” through the Integrated Ombudsman Scheme 2021. The Reserve Bank of India has repealed the earlier Banking Ombudsman Scheme 2006 and launched Integrated Ombudsman Scheme (hereafter referred to as IOS) 2021 vide Circular no. R&DB/CM&CS - CS/3/2021 – 22 dated 07.12.2021. The new IOS 2021, integrates the existing three Ombudsman schemes of RBI namely: - (i)  The Banking Ombudsman Scheme, 2006; (ii) The Ombudsman Scheme for Non-Banking Financial Companies, 2018;and   (iii) The Ombudsman Scheme for Digital Transactions, 2019.

2. In today’s customer centric banking space, the number of complaints pending before the Ombudsman has become the yardstick of the functioning of the internal grievance redressal mechanism and customer service of each bank/financial institutions. The bank are carrying an inherent reputational risk if the cases filed with the Banking Ombudsman are not handled promptly and properly.

3. It is good news to all Bank’s customers that the new scheme makes RBI Ombudsman mechanism jurisdiction neutral. The complaint may be lodged online through the portal designed for the purpose (https://cms.rbi.org.in). The complaint may also be submitted through electronic or physical mode to the Centralised Receipt and Processing Centre as notified by the Reserve Bank. The complaint, if submitted in physical form, shall be duly signed by the complainant or by the authorised representative. The complaint shall be submitted in electronic or physical mode in such format and containing such information as may be specified by Reserve Bank.

4. The Reserve Bank of India first formulated the Banking Ombudsman Scheme, 2006 which is being amended from time to time. The Reserve Bank of India through the IOS Scheme 2021, intends to provide cost-free redress of customer complaints involving deficiency in services rendered by banking/financial entities regulated by RBI. The customers have got right to lodge the complaint with Ombudsman, if the compliant is not resolved to the satisfaction of the customers or complaint is not replied by the
bank/financial institution within a period of 30 days.

5. In terms of IOS, any customer aggrieved by an act or omission of the Bank resulting in deficiency in service may file a complaint under the Scheme personally or through an authorised representative, other than an Advocate, duly appointed and authorised in writing to represent the complainant in the proceedings before the Ombudsman. However, no complaint for deficiency in service shall lie under the Scheme in the matters involving commercial judgment/commercial decision of a Bank. Further, any dispute between a vendor and a Bank relating to an outsourcing contract, general grievances against Management or Executives of a Bank, a dispute in which action is initiated by a Bank in compliance with the orders of a statutory or law enforcing authority, a dispute between involving employee-employer relationship of a Bank, etc., shall not be considered as a compliant.

6. A complaint under the Scheme shall be admissible under the following conditions: -

    i.  Only if a written complaint to the Bank was rejected wholly or partly by the Bank    or

    ii. The complainant is not satisfied with the reply; or

    iii. The complainant had not received any reply within 30 days after the Bank received the complaint.

7. A complainant has to bear in mind, the following points before lodging a complaint with the Ombudsman: -

8. The complaint shall be filed before the Ombudsman, within one year after the complainant has received the reply from the Bank or where no reply is received, within one year and 30 days from the date of the complaint. The complainant should also ensure that the present complaint is not in respect of the same cause of action which is already pending before an Ombudsman or settled or dealt with on merits by an Ombudsman or pending before any Court or any other Forum or Authority. It should also be ensured that the complaint is not abusive or frivolous or vexatious in nature. The complaint to the Bank should be made before the expiry of the period of limitation prescribed under the Limitation Act, 1963.

9. The Banking Ombudsman is empowered to direct the Bank to provide any infor-mation or furnish certified copies of any document relating to the complaint which are or is alleged to be in possession of the Bank. In the event of failure of the Bank to comply with the requisition without sufficient cause, the Ombudsman may draw an inference that the Bank has no information to furnish.

10. A complaint filed before the Ombudsman shall deemed to be resolved: -

(a) if the complaint has been settled by the Bank with the complainant upon the intervention of the Ombudsman; or

(b) if the complainant has agreed in writing that the manner and the extent of
resolution of the grievance is satisfactory; or

(c) if the complainant has withdrawn the complaint voluntarily.

11. The Ombudsman may reject a complaint at any stage if it appears that the complaint made is non-maintainable under RBI IOS 2021 or is in the nature of offering suggestions or seeking guidance or explanation. The Ombudsman may also reject a complaint at any stage under the following conditions: -

   i.  if in his opinion there is no deficiency in service; or

  ii.  the compensation sought for the consequential loss is beyond the power of the

       Ombudsman to award the compensation or

  iii.  the complaint is not pursued by the complainant with reasonable diligence; or

  iv.  the complaint is without any sufficient cause; or

  v.  the complaint requires consideration of elaborate documentary and oral evidence and the proceedings before the Ombudsman are not appropriate for adjudication of such complaint; or

  vi.  in the opinion of the Ombudsman there is no financial loss or damage, or inconvenience caused to the complainant.

12. The Ombudsman through its award can direct the Bank for specific performance of its obligations and for making payment to the complainant by way of compensation for any loss suffered by the Bank’s customer. However, the Award passed shall lapse and be of no effect unless the complainant furnishes a letter of acceptance of the Award in full and final settlement of the claim to the Bank, within a period of 30 days from the date of receipt of the copy of the Award. If the Bank is accepting the award, it may contact the customer and get the acceptance of award. Thereafter, Bank may comply with the award within a stipulated period of 30 days and intimate compliance to the Ombudsman within 30 days from the date of receipt of the letter of acceptance from the complainant. If the customer is not agreeable with the award, he/she may prefer an appeal before the Appellate Authority within 30 days of the date of receipt of the Award or rejection of the complaint. Likewise, if the Bank is aggrieved with the award, it may also prefer an appeal before the Appellate Authority. An appeal may be filed by the Bank only with the previous sanction of the Managing Director. The Appellate Authority may, if he is satisfied that the complainant had sufficient cause for not making the appeal within the time, may allow a further period not exceeding 30 days.

13. In case, the Bank omits or fails to file its written version and documents within the time, the Ombudsman may proceed ex parte based on the evidence available on record and pass appropriate Order or issue an Award. There shall be no right of appeal to the Bank in respect of the Award issued on account of non-response or non-furnishing of information sought within the stipulated time.

14. The Appellate Authority may, after giving the parties a reasonable opportunity of being heard:

(a) dismiss the appeal; or

(b) allow the appeal and set aside the Award or order of the Ombudsman; or

(c) remand the matter to the Ombudsman for fresh disposal in accordance with such directions as the Appellate Authority may consider necessary or proper; or

(d) modify the order of the Ombudsman or Award and pass such directions as may be necessary to give effect to the order of the Ombudsman or Award so modified; or

(e) pass any other order as it may deem fit.

15. The Ombudsman has to contact the Bank and customer and hold the meeting in an amicable environment. The Banks are under obligation to educate the customer about the relevant provisions contained in Bank’s Internal Guidelines, RBI Guidelines and Standards of the BCSBI Code. The Banks shall also train their officials to reply to all customer queries patiently and in a pleasing manner.

16. The Ombudsman shall endeavour to promote settlement of a complaint by agreement between the complainant and Banks through facilitation or conciliation or mediation. The proceedings before the Ombudsman shall be summary in nature and shall not be bound by any rules of evidence. The Ombudsman may examine either party to the complaint and record their statement.

17. A study conducted to analyse the nature of complaints received by Ombudsman reveals that the major complaints are in the nature of delay in payment of pension, difficulties in sanction and disbursement of Home Loans, problems in digital transactions, misbehaviour of bank staff, etc. The RBI expect that the Banks should make efforts to resolve the complaints as the complaints are being received at Bank’s level at least 30 days before lodging of the complaint with the Ombudsman. The Banks are also under obligation to display salient features of the Scheme for Knowledge of the Public.

The Banking Ombudsman scheme is mutually beneficial to both the Bank and its customers. It gives an opportunity to the Bank to understand the problems faced by the customers and come up with solutions to resolve it. The American author, Zig Ziglar once stated that “The complaining customer represents a huge opportunity for more business”. Likewise, the Banks today is taking the resolution of the customers complaint as a chance to retain customers and enhance customer experience. Hope “One Nation One Ombudsman Scheme” will act as a catalyst for harmonious resolution of customers complaints in Banking Industry.

Bonafidely Boneless

(By Sreejith Cherote, Advocate, High Court of Kerala)

E-mail : sreejithcherote@gmail.com                                  Mob. 9349110721

“Nn¡³ _ncnbmWnbn Nn¡³ DsI¶pIcpXn ssSKÀ _man ssSKÀ DImhWsa¶nÔ. This seems to be a bonehead dialogue from an offbeat movie, but when compared to the decision in Berkheimer v. REKM L.L.C.1, of Supreme Court for the State of Ohia, United States of America, this dialogue assumes relevance for being misjudged as a jabberwocky. It’s quite inquisitive to see, that legal reasoning may, at times, appear quite illogical to the legal vouge and rebellious to common sense. Even in the background of universal legal and statutory mandate that labeling should confirm with the content, a “U” turn has been taken by a Supreme Court in a “so-called” civilized country, in its legal reasoning that, label declaration cannot at all times vouch verbatim to the contents. Though it all happened in thousands of kilometres away in a different legal plane, it is significant for its legal principal on a tortious liability, which has a universal application. Considering the fact that law of tort has mainly evolved in India through the principles of law enunciated from judicial pronouncements, most of them delivered abroad as in the case of Donohue v. Stevenson2.

Michael Berkheimer went to a restaurant in, Southwest Ohio, United States and ordered boneless chicken wings. The menu of the restaurant did not have a disclaimer stating that boneless chicken wings may contain bones. While eating the third piece of boneless wings, a bone with a size of 5 cm went into his wind pipe and damaged it. Later, he developed severe fever and had to be hospitalized, from where it was diagnosed that the bone had injured his esophagus and caused infection. He had to undergo several surgeries and numerous days of hospitalization to remove the bone and to arrest the infection which has reached up to his vital organs.

He sued the restaurant for negligence, after multiple rounds of litigation, at lower level, the matter came up before the Ohio Supreme Court, which in a divided decision of majority 4 to 3, gave a ruling that “boneless chicken can have bones”. Court further held that bones are natural to meat, so consumer should expect them, and boneless wings are a cooking style and no reasonable consumer would think that boneless chicken wings might not have bones in them, especially when bones are part of the chicken and no one can be held liable when boneless wings have bones. A strange analogy has been drawn by the court to explain the logic to the effect that, while eating “chicken fingers”, nobody expects and thinks that they are actually eating fingers” (much like the movie dialogue referred above).

Court had applied the ALLEN TEST3 (Allen v. Grafton) in determining whether there is any negligence on the part of the restaurant. The crucial point to be considered in Allen test are twofold “foreign-natural4” and “reasonable expectation5” tests to arrive at a conclusion whether there is negligence or breach in the duty to take care. The question is whether the foreign body found in the food item was alien to the food, whether the harmful substance was foreign to the food or natural and whether the customer could have reasonably guard against it. Court found that bone was natural and large in comparison to the piece of chicken and any reasonable consumer should have been able to find it. The court further observed that “A diner reading “boneless wings” on a menu would no more believe that the restaurant was warranting the absence of bones in the items than believe that the items were made from chicken wings, just as a person eating “chicken fingers” would know that he had not been served fingers. The food item’s label on the menu described a cooking style; it was not a guarantee6”.

The case has led widespread criticism regarding the reasoning adopted by the court and a U.S. Senator7 has described the Judgment as insane and had later introduced a legislation to overcome the effect of this decision8.

It seems in the judgment; legal reasoning had prevailed over common sense in the conclusion drawn by the majority of the Judges. It is a legal requirement and common understanding that the labeling of the product should confirm with the contents. If there is a trade name for the product reflecting its identity as a particular thing, it’s the requirement of law that, the contents should show justice to the declaration. If there is a negative announcement on the product that something is singularly absent in it and when it is marketed highlighting the absence of something and a customer purchases the same believing the same, court seems not justified in introducing a reasoning at a hyper technical level and concluding that the label of a product should be judged with reference to the nature of the product and not as per its the commercial labelling.

The inference drawn by the court does not seem to be sound logic. Commercial labelling in itself is a class of requirement, a criterion in which certain standards has to be has been set. The very purpose of labelling is to bring accountability imbibing the concept of “duty to care” and fixing accountability and liability by prescribing uniform standards, including labelling, violation of the same attracts penal consequence to commend obedience. If the above logic is applied how can one complaint about the presence of sugar in “sugar free” sweetener or the presence of Gluten in “Gluten free” food supplements.

Now if we are to judge each product based on its nature, devoid of the prevailing practice in the commercial labelling of FMCG9 product, it will open a unfair leverage for the manufacturers/sellers opening a plethora of defenses against, any actionable claims regarding their negligence or failure in duty to care. In India there are specific positive legislations, like Food Safety Act, package commodities rules etc., to insist that the label declaration should match the content. Here it is the requirement of law that the label must not contain information about the food that could be deemed false, misleading, deceptive, or otherwise create an erroneous impression regarding the product and also the requirement that name of the item should be mentioned along with the trade name, description, list of ingredients, in descending order of their composition by weight or volume. Seen from the Indian legal perspective, in view of the statutory mandate here, regarding product quality there seems no confusion in fixing liability generally, but there are certain grey areas of personal torts where we still rely on the ratio of foreign judgments and the ratio in Berkheimer v. REKM L.L.C. is sure to create an anomaly.

In the opinion of the author, when a food product is specifically marketed in a specific name with reference to the absence or presence of an ingredient, it is the duty of the manufacture to assure to the customers that the specified product doesn’t contain such an ingredient and if any injury is caused to a customer due to the presence or absence of that particular ingredient, there is failure of duty to care by the manufacturer. At all necessary times courts are proactive and act extensively intellectual, stretching logic to the possible extent to undo an injustice, but in certain cases same upbeat is exhibited for wrong reason and by erroneous conclusions, contradicting our expectation which is as shocking as choking on a bulky bone from a boneless meat.

Foot Note:

1.  Berkheimer v. REKM L.L.C., Slip Opinion No. 2024-Ohio-2787

2.  Donoghue v. Stevenson (1932) AC 562“snail in the ginger bottle case” streamlined the law of negligence

3.  Allen v. Grafton, 170 Ohio St. 249, 251 (1960) court propounded reasonable-expectation test referred to as the “foreign natural test” test which looks to whether the injurious substance found in the food was foreign to or natural to the food.

4.  “Foreign natural test” wherein court examines, whether the injurious substance is foreign to the particular item, for arriving at conclusion regarding negligence of a party Allen v. Grafton, 170 Ohio St. 249, 251 (1960).

5.  Reasonable Expectation Test” if the substance is within a consumer’s reasonable expectation of what might be present in the food—the supplier could not be said to have violated its duty of care. Allen v. Grafton, 170 Ohio St. 249, 251 (1960).

6.  Para 23-page 10 Berkheimer v. REKM L.L.C., Slip Opinion No. 2024-Ohio-2787.

7.  US Senator Bill DeMora (D-Columbus).

8.  Ohio Capital Journal July 29 ,2024.

9.  FMCG-Fast moving consumer goods.

In Quest of Justice

(K. Ramakumar, Sr. Advocate, High Court of Kerala)

“Sometimes, inquest of justice, we end up doing injustice.”

-- Justice Pankaj Mithal in High Court Bar Association, Allahabad v. State of U.P. (2024 (2) KLT 163 (SC) = 2024 KLT OnLine 1139 (SC) = (2024) 6 SCC 267).

The issue involved in the case is whether Asian Resurfacing of Road Agency Pvt. Ltd. (2018 (2) KLT 158 (SC) = (2018) 16 SCC 299) had crossed the limits in restricting interim orders. The Apex Court took note of the pitfalls in our legal system and the inordinate delay which has become part of it.

“In our legal system, which is facing a docket explosion, an order of remand should be made only as a last resort. The orders of remand not only result in more delays but also increase the cost of litigation. Therefore, to avoid the possibility of passing an order of remand, the grant of stay of proceedings is called for in many cases.”

The Apex Court also quoted from Abdul Rehman Antulay V. Nayak (1992 (1) KLT OnLIne 903 (SC) = (1992) 1 SCC 225 at page 268).

“But then speedy trial or other expressions conveying the said concept — are necessarily relative in nature. One may ask — speedy means, how speedy? How long a delay is too long? We do not think it is possible to lay down any time schedules for conclusion of criminal proceedings. The nature of offence, the number of accused, the number of witnesses, the workload in the particular court, means of communication and several other circumstances have to be kept in mind.”

“In many cases, the accused may himself have been responsible for the delay. In such cases, he cannot be allowed to take advantage of his own wrong. In some cases, delays may occur for which neither the prosecution nor the accused can be blamed but the system itself. Such delays too cannot be treated as unjustifiable — broadly speaking. Of course, if it is a minor offence — not being an economic offence — and the delay is too long, not caused by the accused, different considerations may arise. Each case must be left to be decided on its own facts having regard to the principles enunciated hereinafter.”

This is not confined to the criminal courts. The Apex Court adds,

“There is a huge filing of regular appeals, both civil and criminal in High Courts. After all, the High Courts deal with many other important matters, such as criminal appeals against acquittal and conviction, bail petitions, writ petitions, and other proceedings that involve the issues of liberty under Article 21 of the Constitution of India. The High Courts deal with matrimonial disputes, old appeals against decrees of civil courts, and appeals against appellate decrees. There are cases where senior citizens or second or third-generation litigants are parties. The High Courts cannot be expected to decide, on a priority basis or a day-to-day basis, only those cases in which a stay of proceedings has been granted while ignoring several other categories of cases that may require more priority to be given.”

Please see further,

“The figures of pendency of cases in our trial Courts are staggering. There are different categories of cases which, by their very nature, are required to be given utmost priority, such as the cases of the accused in jail and the cases of senior citizens. For example, there are many legislations like the Hindu Marriage Act, 1955, the Protection of Women from Domestic Violence Act, 2005, the Negotiable Instruments Act, 1881 etc. which prescribe specific time limits for the disposal of cases. However, due to the huge filing and pendency, our Courts cannot conclude the trials within the time provided by the statutes. There is a provision in the Code of Criminal Procedure, 1973, in the form of Section 309, which requires criminal cases to be heard on a day-to-day basis once the recording of evidence commences. The same Section provides that in case of certain serious offences against women, the cases must be decided within two months of filing the charge sheet. Unfortunately, our Criminal Courts are not in a position to implement the said provision.”

The picture presented by the Highest Court of the Country is truly alarming. It is not for nothing that the Hon’ble Chief Justice of India recently in a speech said, “The Courts are not of the Judges, by the Judges, and for the Judges”. The Hon’ble Chief Justice of India bluntly said that the litigant has lost confidence in the system and is avoiding approaching it.

What are we to do then to enervate this enduring and eluding enigma? Numerous committees, commissions, recommendations etc. have been made in this regard besides the lament in judicial pronouncements. The High Court of Kerala, in one of the judgements confessed that it is not able to devote time to large number of pending criminal appeals where the convicts are in prison. Such is the state of affairs in almost all the High Courts.

Some of the Judges of the High Court of Kerala get up at 4 o’clock and sleep at 11 o’clock after a toiling day’s work. Still such hard and dedicated work do not appear to be rewarding. At the other end, there are Judges who even omit to pronounce or sign judgements before they demit office. Committed and hard-working Judges face intense health problems as well.

A litigant enters the court with a belief that he will get speedy and fair adjudication. The never ending litigation tires him out and he resorts to deviant methods. It is the common man who needs the courts more than the corporates.

The conscientious among the lawyer community have started developing a feeling that they are making unmerited money without any quid pro quo. Absent job satisfaction. The end result. All are absolutely frustrated.

Is not the Hon’ble Chief Justice, therefore,right, it may be respectfully asked, if people think that courts are only for judges and lawyers and not for the common people?

Bharatiya Nagarika Suraksha Sanhita, 2023

Salient Features & Major Changes from Cr.P.C.

(By Saji Koduvath, Advocate, Kottayam)

Introduction

3 New Acts of 2023

•    Bharatiya Nyaya Sanhita, 2023,

•    Bharatiya Nagarika Suraksha Sanhita, 2023,

•    Bharatiya Sakshya Adhiniyam, 2023

BNSS – Major Changes from Cr.P.C.

CHAPTER I: PRELIMINARY

CHAPTER II: CONSTITUTION OF CRIMINAL COURTS AND OFFICES (S.6 – 20)

CHAPTER III: POWER OF COURTS (Ss. 21 to 29)

CHAPTER V: ARREST OF PERSONS (S. 35 – 62)

CHAPTER VI: PROCESSES TO COMPEL APPEARANCE  (S.63 – 93)

CHAPTER VII: PROCESSES TO COMPEL THE PRODUCTION OF THINGS  (S. 94 -110)

CHAPTER X: ORDER FOR MAINTENANCE OF WIFES, CHILDREN AND PARENTS (S.144 – 147)

CHAPTER XII: PREVENTIVE ACTION OF POLICE (S.168 -172)

CHAPTER XIII: INFORMATION TO THE POLICE AND THEIR POWERS TO INVESTIGATE (S.173 – 196)

CHAPTER XIV: JURISDICTION OF THE CRIMINAL COURTS IN INQUIRIES AND TRIALS

CHAPTER XIX – TRIAL BEFORE A COURT OF SESSION (S.248 – 260)

CHAPTER XXII – SUMMARY TRIALS (S. 283 – 288)

CHAPTER XXIII: PLEA BARGAINING (S. 289 – 300)

CHAPTER XXV: EVIDENCE IN INQUIRIES AND TRIALS (S. 307 – 336)

CHAPTER XXVI: GENERAL PROVISIONS AS TO INQUIRIES AND TRIALS (S. 337 to 366)

CHAPTER XXIX: THE JUDGMENT (S.392 – 406)

CHAPTER XXXIX: MISCELLANEOUS (S.520 – 531)

Epitome

Major changes include –

• 1. Use of technology and electronic mode

      •  in Trials

      •  in Search and Seizure

      •  in Recording certain FIRs.

• 2. Mandates collection of forensic evidence in investigation (after effecting Notification thereof within 5 years) – for offences punishable for seven years or more.

• 3. Deadlines –

      •  Judgment within 30 days of the arguments (extendable up to 60 days);

       •  Information to the victim as to the progress of the investigation within 90 days, and

     •  Framing of charges by a sessions court within 60 days of the first hearing on                        such charges.

• 4. Trial, even in absence of a proclaimed offender.

• 5. Introduced:

•  ‘Preliminary inquiry’ before filing FIR (for offences punishable for 3 years or more but less than 7 years).

•  Concept of Zero FIR (“irrespective of the area”) and e-FIR.

•  6. Further investigation -

•  permission of magistrate is not needed after a (final) report has been forwarded.

•  But, for further investigation “during the trial” permission of the Court is needed.

•  7. “Evidence” of public servants can “be secured” through the successor officer.

•  8. Collection of Samples (including finger impressions and voice), without arrest.

•  9. Power of police to detain or remove any person.

•  10. State Government shall prepare Witness Protection Scheme

Conclusion

Doubts are seen raised, and questions are boosted –

•     Was a new enactment really required?

•     Wasn’t it proper to bring-in the changes by an amendment?

Whatever may be the answer, one thing is important –

•     Implementation of technology and electronic mode in Investigation and Trial (including that in Recording certain FIRs, Search and Seizure etc.) is ‘in tune with the times’.

Registration of A Composite Mark : Rights and Limitations

(By Febin James, Advocate, High Court of Kerala)
e-mail : febin.james@gmail.com       Mob.: 9446764699

A registered trademark grants the exclusive right to use the trademark against others, but this right is subject to specific conditions. In the case of composite trademarks, which contain several elements, the authority to take action against an infringer is limited to instances where a mark as a whole is misused. This principle is reflected in the judgments of various courts, which have clarified the extent and limitations of trademark rights, especially concerning composite marks.

Concept of Composite Marks

The Composite marks are trademarks that consist of multiple elements, including words, designs, logos, or a combination of these. These elements can be distinctive or non-distinctive. The distinctiveness of a composite mark is often derived from the combination of its elements rather than from any single component. As such, the protection afforded to a composite mark is generally limited to the mark as a whole, and not to its individual parts unless those parts are separately registered and distinctive in their own right.

Elements of a Composite Mark

1. Distinctive Elements: These are parts of the mark that are inherently distinctive or have acquired distinctiveness through use. They play a crucial role in identifying the source of goods or services.

2. Non-distinctive Elements: These are common or descriptive parts that do not independently qualify for trademark protection. They often include generic terms, common symbols, or descriptive words.

Protection of Composite Marks

The first incidence of the registration of a composite mark is that it grants exclusive rights to use the mark as a whole. This means that the proprietor cannot claim exclusive rights over individual elements of the mark. To obtain broader protection, the proprietor must register each element separately. The Second aspect of registration of a composite mark is where the mark containing distinctive elements and non-distinctive elements,  the registration do not confer any right over the non-distinctive elements. The Section 17 of The Trademark Act, 1999 deals with the effect of registration of parts of a mark. It states:

“17. Effect of registration of parts of a mark.—

(1)When a trade mark consists of several matters, its registration shall confer on the proprietor exclusive right to the use of the trade mark taken as a whole.

(2)Notwithstanding anything contained in sub-section (1), when a trade mark—

(a)  contains any part—

(i)   which is not the subject of a separate application by the proprietor for registration as a trade mark; or

(ii)  which is not separately registered by the proprietor as a trade mark; or

(b)contains any matter which is common to the trade or is otherwise of a non-distinctive character, the registration thereof shall not confer any exclusive right in the matter forming only a part of the whole of the trade mark so registered.”

The purpose of this Section is to ensure that the proprietor of a composite mark does not claim exclusive rights over non-distinctive parts of the mark, which may be common to the trade. The Clause (1) of the Section 17 deals with a mark containing several Parts and the provision clearly states that the registration shall only confer on the proprietor exclusive right to the use of the trade mark taken as a whole. Whereas as clause (2) not merely deal with a composite mark comprising of several parts, but a composite mark containing distinctive elements as well as non-distinctive elements. From the plain reading, it is clear that no right will be conferred over the non-distinctive elements, but the question is whether any right is conferred over distinctive elements in a composite mark.  Nowhere in the Section 17, it is stated that the distinctive part in the composite mark will be independently protected.

Rights and Limitations, The Decisional Law

The Registrar of Trade Marks v. Ashok Chandra Rakhit Ltd.₁

In this case, the Supreme Court emphasized the importance of disclaimers in trademark registrations. The respondent had registered the trademark “Shree” without a disclaimer, which led to confusion as “Shree” is a common auspicious symbol in Hindu culture. The Supreme Court upheld the Registrar’s decision to insert a disclaimer, stating that the purpose of a disclaimer is to define the proprietor’s rights under the registration and to minimize the possibility of extravagant and unauthorized claims. The court ruled that the registration of a distinctive label as a whole does not confer exclusive rights to any particular word or name contained within the label. Therefore, the proprietor of the trademark “Shree” could not claim exclusive rights over the word itself.

Amritdhara Pharmacy v. Satya Deo Gupta₂

The Supreme Court held that a trademark must be judged by the overall impression created by the mark as a whole. The court emphasized that the composite mark should be viewed in its entirety and not dissected into individual elements.

Parle Products Pvt. Ltd. v. J.P. & Co. Mysore₃

The Supreme Court reiterated that the correct approach for comparing two composite marks is to consider the overall impression and to look at the essential features of the marks. The court ruled that even if the marks are not identical, if they have a similar overall impression, it could lead to confusion.

Cadila Health Care Ltd. v. Cadila Pharmaceuticals Ltd.₄

In this landmark case, the Supreme Court laid down several principles for determining the likelihood of confusion between trademarks, including composite marks. The court stressed the importance of considering factors such as the nature of the goods, the class of purchasers, the mode of purchase, and the overall similarity in the essential features of the marks.

M/s. Kirorimal Kashiram Marketing v. M/s. Shree Sita Chawal Udyog Mill₅

The Delhi High Court held that the composite mark must be taken as a whole and that the comparison should not be restricted to one component of the mark. The court also stated that phonetic similarity and visual similarity are important aspects to be considered in such cases.

ITC Limited v. Philip Morris Products₆

The Delhi High Court emphasized that while comparing composite trademarks, the court must consider the dominant features of the trademarks. The overall structural and phonetic similarity, as well as the idea conveyed by the marks, are crucial in determining the likelihood of confusion.

Tata Sons Ltd. v. Manoj Dodia & Ors.₇

The Delhi High Court held that for composite marks, the dominant feature plays a significant role in the determination of deceptive similarity. The court ruled that if the dominant feature of the two marks is similar, it is likely to cause confusion among the public.

Nandhini Deluxe v. Karnataka Co-operative Milk Producers Federation Ltd.₈

The Supreme Court highlighted the importance of the overall impression of composite marks, ruling that individual components should not be given undue importance. The decision emphasized the need to consider the distinctiveness and the primary impression created by the marks.

Bhole Baba Milk Food Industries v. Parul Food Specialties₉

This case involved the use of the word “Krishna” in trademarks for milk products. The Delhi High Court held that the name of the deity cannot be monopolized as it is in the public domain. The court ruled that the registration obtained by the appellant was for the distinctive form of the word “Krishna” as used in their label, and not for the word itself. The distinctiveness is limited to the registered form of the mark, and thus, the registration does not provide an exclusive statutory right to the word “Krishna”.

Super Cassettes Industries Ltd. v. Union of India & Ors.₁₀

In this case, the court dealt with the trademark “T-Series” and the opposition by TELCO over the use of the letter “T”. The court held that the marks of the two companies were structurally, stylistically, and substantially different, and there was no likelihood of confusion. The judgment highlighted that a composite mark must be compared in its entirety and that individual components cannot be monopolized unless they are distinctly registered as separate trademarks. This decision reinforces the principle that the rights conferred by the registration of a composite mark are limited to the mark as a whole.

Harjeet Kaur v. Deputy Registrar of Trade Marks₁₁

The court in this case addressed the issue of similarity between the marks “TANU” and “T.T. Industries.” It was held that composite marks should be compared as a whole and not dissected into parts. The court emphasized that a composite trademark cannot be separated into its prefix and suffix to determine similarity. The distinctiveness and overall impression of the mark should be the basis of comparison. This case underscores the importance of viewing composite trademarks in their entirety rather than focusing on individual elements.

Conclusion

The registration of a composite mark does not confer exclusive rights to its individual or non-distinctive parts. The rights provided under the Act are limited to the form in which the mark is registered. The Courts have consistently emphasized the importance of considering composite marks in their entirety and not dissecting them into individual elements. By understanding the principles and limitations of composite mark protection, businesses can better navigate the complexities of trademark registration and enforcement.

Foot Notes:

1. 1955 KLT OnLine 1063 (SC) = AIR 1955 SC 558.

2. 1962 KLT OnLine 1143 (SC) = AIR 1963 SC 449.

3.1972 KLT OnLine 1208 (SC) = AIR 1972 SC 1359.

4. 2001 (3) KLT SN 3 (C.No.4) SC = AIR 2001 SC 1952.

5.2010 (3) KLT OnLine 1134 (Del.) = 2010 (42) PTC 486 (Del.).

6. 2010 (1) KLT OnLine 1158 (Del.) = 2010 (42) PTC 572 (Del.).

7. 2011 (1) KLT OnLine 1242 (Del.).

8. 2018 (3) KLT OnLine 3038 (SC) = (2018) 9 SCC 183.

9. 2011 (4) KLT OnLine 1122 (Del.) = 2011 (48) PTC 235 (Del.).

10. 2010 (2) KLT OnLine 1128 (Del.) = 2010 SCC OnLine Del.1652.

11. 2005 (30) PTC 330 IPAB.