AI System and Privacy Laws
By Tanoosha Paul, Advocate, High Court of Kerala
04/09/2024
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.
Section 125 of the Criminal Procedure Code (Now Replaced with Section 144 of B NS S,2023 ):
By S. Balachandran (Kulasekharam), Advocate
04/09/2024
Section 125 of the Criminal Procedure Code (Now Replaced with
Section 144 of Bharathiya Nagarik Suraksha Sanhita,2023 ):
A Potential Contravention of Article 14 of the Indian Constitution?
(By Adv.S.Balachandran (Kulasekharam), Thiruvananthapuram)
E-mail : balachand59@gmail.com Mob. 9387734030
Article 14 of the Constitution of India enshrines the principles of equal protection under law and equality before the law for all citizens. In India’s legal landscape, the endorsement of gender discrimination in favour of either gender in any field is deemed a violation of this constitutional mandate and, by extension, is unconstitutional. This brings to light an intriguing question related to Section 125 of the Criminal Procedure Code (now replaced with Section 144 of Bharathiya Nagarik Suraksha Sanhita, Act 46/2023).The Code and Sanhita, outlining the ‘Maintenance of Wives, Children and Parents’, appears to provide a unique status to women, particularly related to maintenance rights. The question then arises is Section 125 of the Criminal Procedure Code and Section 144 of Act 46/2023 denying men equality as guaranteed by the law?
There are situations where husbands, who have been deserted and are unable to fend for themselves, are further neglected by their financially capable wives. This raises important questions about the concept of equality before the law.
Throughout my career, my path has crossed with several unfortunate men, often non-resident Indians, who diligently toil day and night in Gulf countries, sending substantial portions of their income to their wives in India. The wives frequently use this money to regularly purchase property in their own names. The husbands perpetuate this cycle, hoping to eventually retire and lead a peaceful, wealthy life with their families. But, regrettably, reality bites, and they are often left to fend for themselves, with their dreams shattered and hard-earned wealth pilfered.
Whenever the husbands are amassing much wealth and when they arrive at the native places, they will be whole heartedly welcomed and treated by their wives and it will strengthen the confidence of the husbands. The real tragedy starts, when the husbands arrive after winding up of his job or he was deported from that country, with no money in his hands. In most of the cases, at those occasions nobody will be there in the Airport to receive him.On their return to India, instead of a warm welcome, many encounter restraining orders under Domestic Violence Act barring their entry into their own houses, leaving them homeless and leading to lengthy legal battles to reclaim what was once theirs.
The story of a Millionaire and a Fishmonger gets to the heart of this matter – should enjoyment of life be deferred for future wealth by overworking at the expense of happiness and youth, or should there be a balance of work and enjoyment each and every day?“The Millionaire told to the Fishmonger that, you see I worked hard for about 25 years, earned much wealth and now I am luxuriously spending my time and is enjoying the life. The
Fishmonger told that, why should I wait for 25 years for enjoyment of life. After 4 hours of work on every day, I used to enjoy my life along with my wife and children and am taking rest every day. I may not be aliveafter the so called 25 years of hard work for enjoyment of my life.”
The notion that women are the weaker section of the community and depend on their husbands for livelihood now seems like an outdated concept. Today, over 75% of women are employed across all sectors, starkly contrasting the perception of women as financially dependent.
Even if the wife is immensely rich, after desertion of husband, she is living in adultery, no legal liability was imposed upon her to maintain her children and parents and it is vice versa in the case of husbands. These are all total inequality.
Under Section 18 of Hindu Adoptions and Maintenance Act also, the liability of payment of maintenance is imposed upon the husband alone. This Act was of the year 1956,probably based on the situation of wives during those period, such a restriction was imposed upon the said Act. But under Section 20 of Hindu Adoptions and Maintenance Act, the liability to maintain children and parents are equally imposed upon the man and woman. Under Christian Law, no statutory liability was cast upon the husband to maintain his wife. But in equity, based on the decisions of the Honourable High Court of Kerala, maintenance were award to the christian wives.
Considering the changing societal dynamics, it is crucial to reconsider laws such as Section 125 of the Cr.P.C. , Section 144 of Act 46/2023 and Section 18 ofHindu Adoptions and Maintenance Act. Quite possibly, it should now be the socio-economic status of an individual, rather than their gender, that determines the ‘weaker section’ of the community. Therefore, the wording of Section 125 of the Cr.P.C., and Section 144 of Act 46/2023 should be revisited, with propositions to replace “his wife” with “any spouse”, thus reflecting a gender-neutral view and maintaining the spirit of equality before the law.
Article 14 of the Constitution of India pledges equity, and our legislation needs to reflect this pledge comprehensively and without bias. It is time we broadened our legal discourse to encompass these evolving societal norms.
Bharatiya Nagarika Suraksha Sanhita, 2023
Salient Features & Major Changes from Cr.P.C.
By Saji Koduvath, Advocate, Kottayam
26/08/2024
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
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S.2 BNSS Definitions. (New) Insertions |
Section 2. (a) “Audio-video electronic” (b) “bail” (d) “bail bond” (e) “bond” (i) “Electronic communication” (l) “Investigation” – Explanation |
CHAPTER II: CONSTITUTION OF CRIMINAL COURTS AND OFFICES (S.6 – 20)
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S. 15 BNSS (S. 21 – Cr.P.C.) Change – State Government may appoint – any police officer not below the rank of Superintendent of Police (“to be known”) as Special Executive Magistrates |
15. Special Executive MagistratesThe State Government may appoint, for such term as it may think fit, Executive Magistrates or any police officer not below the rank of Superintendent of Police or equivalent, to be known as Special Executive Magistrates, for particular areas …. ….. ….. |
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S.20 BNSS (S. 25A – Cr.P.C.) Change – Establishment of – District Directorate of Prosecution. (Earlier, there was Directorate of Prosecutionin State-level (only); and there was Dy. Directors in District-level). |
20. Directorate of Prosecution:
(1) The State Government may establish,— (a) a Dire-ctorateof Prosecution in the State consisting of a (b) District Directorate of Prosecution in every district consisting of as many Deputy Directors and Assistant Directors of Prosecution, as it thinks fit. |
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Sub-sections (8), (9), (10) and (11) are new provisions. |
(2) A person shall be eligible to be appointed,— (a) as a Director of Prosecution or a Deputy Director of (3) The Directorate of Prosecution shall be headed by the Director of Prosecution, who shall function under the administrative control of the Home Department in the State.
(4) Every Deputy Director of Prosecution or Assistant Director of Prosecution shall be subordinate to the Director of Prosecution; and every Assistant Director of Prosecution shall be subordinate to the Deputy Director |
CHAPTER III: POWER OF COURTS (Ss. 21 to 29)
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S. 23 BNSS (S. 29 – Cr.P.C.) Change – in amount of fine. New punishment – community service.
“Community service” shall mean – the work which the Court may order a |
23. Sentences which Magistrates may pass.(1) The Court of a Chief Judicial Magistrate may pass any sentence authorised by law except a sentence of death or of imprisonment for life or of imprisonment for a term exceeding seven years. (2) The Court of a Magistrate of the first class may pass a sentence of imprisonment for a term not exceeding three years, or of fine not exceeding fifty thousand rupees, or of both, or ofcommunity service. (3) The Court of Magistrate of the second class may pass a sentence of imprisonment for a term not exceeding one year, or of fine not exceeding ten thousand rupees, or of both, or of community service. Explanation.—”Community service” shall mean the work which the Court may order a convict to perform as a form of punishment that benefits the community, for which he shall not be entitled to any remuneration. |
CHAPTER V: ARREST OF PERSONS (S. 35 – 62)
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S. 35(7) BNSS (S. 41 &41A – Cr.P.C.) New Provision – as to arrest Powers to SP– in offences which are punishable for imprisonment, less than 3 years – Not to give permission to arrest an infirm person or a person above 60 years of age. |
S.35.When police may arrest without warrant. (7). No arrest shall be made without prior permission of an officer not below the rank of Deputy Superintendent of Police in case of an offence which is punishable for imprisonment of less than three years and such person is infirm or is above sixty years of age. |
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S. 40 BNSS (S. 43 – Cr.P.C.) Words-Change.
Section 43 Cr.P.C. – “police officer shall |
40. Arrest by private person S.40(2) BNSS – “a police officer shall take him in custody”. |
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S. 43(3) BNSS (S. 46 – Cr.P.C.) New sub-section (3) Handcuffing – Permitted to a habitual or repeat offender or accused of serious offences. |
S.43(3).The police officer may, keeping in view the nature and gravity of the offence, use handcuffwhile effecting the arrest of a person who is a habitual, repeat offender who escaped from custody, who has committed offence of organised crime, offence of terrorist act, drug related crime, or offence of illegal possession of arms and ammunition, murder, rape, acid attack, counterfeiting of coins and currency notes, human trafficking, sexual offences against children, offences against the State, including acts endangering sovereignty, unity and integrity of India or economic offences. |
CHAPTER VI: PROCESSES TO COMPEL APPEARANCE (S.63 – 93)
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S. 63(ii) BNSS (S. 61 Cr.P.C.) New Clause – Summons – by electronic communication |
63. Form of Summons Every summons issued by a court under this Sanhita shall be (i) in writing …….. (ii) in an encrypted or any other form of electroniccommunication and shall bear the image of the seal of the court or digital signature. |
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S.66 BNSS (S.64 – Cr.P.C.) Change – Summons can be given to “some” (an) adult member” Formerly, “male” member. |
Service when person summoned cannot be found BNSS 66- “some adult member” of their family residing with him. Cr.P.C. 64- “some adult male member” of their family residing with him. |
CHAPTER VII: PROCESSES TO COMPEL THE PRODUCTION OF THINGS (S. 94 -110)
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S. 105 BNSS New Provision – Search – Shall be(by) recording through “any” (an) audio-video electronic means, preferably mobile phone . |
105: Recording of search and seizure through audio-video electronic means. The process of conducting search of a place or taking possession of any property, article or thing under this Chapter or under Section 185, including preparation of the list of all things seized in the course of such search and seizure and signing of such list by witnesses, shall |
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S.107 BNSS New Provision – (1) A police officer can, with the approval of the SP of Police,apply for the attachment of any property obtained as a result of a criminal activity. (6) Court can direct – the District Magistrate to rateably distribute (the attached or seized properties) to the affected persons. |
be recorded through any audio-video electronic meanspreferably mobile phoneand the police officer shall without delay forward such recording to the District Magistrate, Sub-divisional Magistrate or Judicial Magistrate of the first class. 107: Attachment, forfeiture or restoration of property (1) Where a police officer making an investigation has reason to believe that any property is derived or obtained, directly or indirectly, as a result of a criminal activity or from the commission of any offence, he may, with the approval of the Superintendent of Police or Commissioner of Police, make an application to the Court or the Magistrate exercising jurisdiction to take cognizance of the offence or commit for trial or try the case, for the attachment of such property.
(6) If the Court or the Magistrate finds the attached or seized properties to be the proceeds of crime, the Court or the Magistrate shall by order direct the |
CHAPTER X: ORDER FOR MAINTENANCE OF WIFES, CHILDREN AND PARENTS (S.144 – 147)
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S.144 & 145 BNSS (S.125 & 126 – Cr.P.C.) Change – maintenance of wifes, children and parents– – Clause 1(d) added – proceedings can be taken – “where his father or mother resides”. |
144. Order for maintenance of wifes, children and parents (1) If any person having sufficient means neglects or refuses to maintain – (a) his wife, unable to maintain herself …..” (child, parents etc. …..) 145. Procedure:(1) Proceedings under Section 144 may be taken against any person in any district— (a) where he is; or (b) where he or his wife resides; or (c) where he last resided with his wife, or as the case may be, with the mother of the illegitimate child; or (d) where his father or mother resides. |
CHAPTER XII: PREVENTIVE ACTION OF POLICE (S.168 -172)
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S.172 BNSS New Provision – (1) All persons are bound to conform to lawful directions of police. (2) A police officer has power to detain or remove any person, also. Inspection of weights and measures (in S. 153 Cr.P.C.) omitted. |
172: Persons bound to conform to lawful directions of police: (1) All persons shall be bound to conform to the lawful directions of a police officer given in fulfilment of any of his duty under this Chapter. (2) A police officer may detain or remove any person resisting, refusing, ignoring or disregarding to conform to any direction given by him under sub-section (1) and may either take such person before a Magistrate or, in petty cases, release him as soon as possible within a period of twenty-four hours. |
CHAPTER XIII: INFORMATION TO THE POLICE AND THEIR POWERS TO INVESTIGATE (S.173 – 196)
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S. 173 BNSS (S. 154 – Cr.P.C.) – Furnishing FIR– (1) The scope of giving FIR is expanded –it can be “irrespective of the area”– This corresponds to the concept of ‘Zero FIR’ It can also be “by electronic communication” (e-FIR). (3) Police officer may with the prior permission from an officer not below the rank of Deputy Superintendent of Police—
(i) proceed to conduct Preliminary inquiry
Note:The Cr.P.C. also requires (in |
173. Information in cognizable cases: (1) Every information relating to the commission of a cognizable offence,irrespective of the area where the offence is committed, may be given orally or by electronic communication to an officer in charge of a police station, and if given— …
Provided further that— (a) in the event that the person (b) the recording of such information shall be videographed;…..
(3) Without prejudice to the provisions contained in Section 175, on receipt of information relating to the commission of any cognizable offence, which is made punishable for three years or more but less than seven years, the officer in-charge of the police station may with the prior permission from an officer not below the rank of Deputy Superintendent of Police, considering the nature and gravity of the offence,— (ii) proceed with investigation when there exists a prima facie case. |
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S. 174 (1) (ii) BNSS (S. 155 – Cr.P.C.) New provision – Investigation – Forward the daily diary report of cases fortnightly to the Magistrate. |
174. Information as to non-cognizable cases and investigation of such cases.(1) When information is given to an officer in charge of a police station of the commission within the limits of such station of a non-cognizable offence, he shall enter or cause to be entered the substance of the information in a book ……. and,— (i) refer the informant to the Magistrate; (ii) forward the daily diary report of all such cases fortnightly to the Magistrate. (2) ….(3)…..(4) … |
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S. 176 BNSS (S. 157 – Cr.P.C.) Change Investigation (1) In investigation of rape – statementof the victim shall be recorded at her residence or a place
of her choice and as far as practicable (2) Forward the daily diary report fortnightly to the Magistrate.
(3) Forensic expert’s visit (in major (It will come into effect – from such date, as may be notified (within a period of five years) by the State Government.] For offences punishable for seven years or more– the officer in charge of a police station shall, cause the forensic expert to visit the crime scene to collect forensic evidence and also cause videography of the process on mobile phone or any other electronic device. |
176. Procedure for investigation(1) If, from Provided that — (a) …. (b) … Provided further that in relation to an offence of rape, the recording of statement of the victim shall be conducted at the residence of the victim or in the place of her choice and as far as practicable by a woman police officer in the presence of her parents or guardian or near relatives or social worker of the locality and such statement may also be recorded through any audio-video electronic means including mobilephone. (2) In each of the cases mentioned in clauses (a) and (b) of the first proviso to sub-section (1), the officer in charge of the police station shall state in his report the reasons for not fully complying with the requirements of that sub-section by him, and, forward the daily diary report fortnightly to the Magistrate and in the case mentioned in clause (b) of the said proviso, the officer shall also forthwith notify to the informant, if any, in such manner as may be prescribed by rules made by the State Government. (3) On receipt of every information relating to the commission of an offence which is made punishable forseven years or more, the officer in charge of a police station shall, from such date, as may be notified within a period offive yearsby the State Government in this regard, cause the forensic expert to visit the crime scene to collect forensic evidence in the offence and also cause videography of the process on mobile phone or any other electronic device: Provided that …. |
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S. 179 BNSS (S. 160 – Cr.P.C.) Change – Not to require attendance of witnesses at a place other than his residence – Age, “sixty-five years” (in Cr.P.C.) is reduced to “sixty years” and the words “or a person with acute illness” are added. |
179. Police officer’s power to require attendance of witnesses. (1) Any police officer making an investigation under this Chapter may, by order in writing, require the attendance before himself of any Provided that no male person under the age of fifteen years or above the age of sixty years or a woman or a mentally or physically disabled person or a person with acute illness shall be required to attend at any place other than the place in which such person resides: |
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Provided further that if such person is willing to attend at the police station, such person may be permitted so to do. (2) The State Government may, by rules made in this behalf, provide for the payment by the police officer of the reasonable expenses of every person, attending under sub-section (1) at any place other than his residence. |
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S. 183 BNSS (S. 164 – Cr.P.C.) Change – Confessions –
If the person making the statement is Note:In Cr.P.C., only a “Metropolitan Magistrate or Judicial Magistrate” could record confession.
It was also provided in Cr.P.C. that “no confession shall be recorded by a police The Cr.P.C. also requires (in assaults to outrage the modesty, rape etc.) – “… may also be recorded by audio-video electronic means in the presence of the advocate …”. |
183: Recording of confessions and statements 183. (1) Any Magistrate of the District in which the information about commission of any offence has been registered, may, whether or not he has jurisdiction in the case, record any confession or statement made to him in the course of an investigation under this Chapter or under any other law for the time being in force, or at any time afterwards but before the commencement of the inquiry or trial: Provided that any confession or statement made under this sub-section may also be recorded by audio-video electronic means in the presence of the advocate of the person accused of an offence: Provided further that no confession shall be recorded by a police officer on whom any power of a Magistrate has been conferred under any law for the time being in force. (2) The Magistrate shall, before recording any such confession, explain to the person making it that he is not bound to make a confession and that, if he does so, it may be used as evidence against him; and the Magistrate shall not record any such confession unless, upon questioning the person making it, he has reason to believe that it is being made voluntarily. (3) If at any time before the confession is recorded, the person appearing before the Magistrate states that he is not willing to make the confession, the Magistrate shall not authorise the detention of such person in police custody. |
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S.184BNSS (S. 164A – Cr.P.C.) Change – examination of victim of rape Time fixed – medical practitioner to forwardthe report – within a period of seven days. |
184: Medical examination of victim of rape: (1) … to… (5) …..
(6) The registered medical practitioner shall, within (7) …. |
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S.185(2) BNSS(S.165 – Cr.P.C.) New – Search Search shall be recorded through audio video, or electronic means. S. 185(5) requires copies of record be sent to Magistrate forthwith, but not later than 48 hours. |
S. 185: Search by police officer 185. (1) …. (2) A police officer proceeding under sub-section (1), shall, if practicable, conduct the search in person:
Provided that the search conducted under this (5) Copies of any record made under sub-section (1) or sub-section (3) shall forthwith, but not later than forty-eight hours, be sent to the nearest Magistrate empowered to take cognizance of the offence, and the owner or occupier of the place searched shall, on application, be furnished, free of cost, with a copy of the same by the Magistrate. |
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S. 187(3) BNSS (S. 167(2) – Cr.P.C.) Magistrate may authorisethe detentionof the accused in custody (beyond the period of fifteen days), if he is satisfied that adequate grounds exist for doing so, for a total period exceeding — (i) 90 days (for serious offences) or (ii) 60 days (other offences). On the expiry of the said period of 90/60 days, the accused shall be released on bail. Proviso to S. 167(2) – Cr.P.C.stipulated: “Provided that—(a) the magistrate may authorise the detention of the accused person, otherwise than in custody of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist….” It is noticeable – (i) “otherwise than in custody of the police” is judicial custody. (ii) “Beyond the period of fifteen days” indicates that the maximum period allowed in police custody is 15 days (within the stipulated 90/60 days). |
187(3). The Magistrate may authorise the detention of the accused person, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this sub-section for a total period exceeding— (i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years; (ii) sixty days, where the investigation relates to any other offence, and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub-section shall be deemed to be so released under the provisions of Chapter XXXIV for the purposes of that Chapter. Proviso to S. 167(2) – Cr.P.C. Referring S.167 Cr.P.C. it is held in C.B.I. v. Anupam J.Kulkarni (1992 (1) KLT SN 49 (C.No.64) SC = AIR 1992 SC 1768 = (1992) 3 SCC 141), as under: “The legislature … has at the same time taken care to see that the interests of the accused are not jeopardised by his being placed under police custody beyond a total period of 15 days, under any circumstances, irrespective of the gravity of the offence or the serious nature of the case.” (Contra view: CBI v. Vikas Mishra, (2023 KLT OnLine 1407 (SC) = 2023 3 SCR 321),and V. Senthil Balaji v. State, (2023 (4) KLT 814 (SC) = (2024) 3 SCC 51). The clause “otherwise than in custody of the police” is omitted in BNSS. Thereby it is possible to order police custody (even) for the entire 90/60 days. |
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S. 193 BNSS (S. 173 – Cr.P.C.) Change – (2)investigation. Investigation of some offences under BNSS and POCSO Act shall be completed within two months. (9)further investigation. permission of magistrate is not needed after a (final) report has been forwarded. Further investigation “during the trial’’ It can be conducted (only) with the permission of the Court and it shall be completed within a period of 90 days After 90 days, further permissionof the Court is needed. |
193. Report of police officer on completion of investigation (1) Every investigation under this Chapter shall be completed without unnecessary delay. (2) The investigation in relation to an offence under Sections 64, 65, 66, 67, 68, 70, 71 of the Bharatiya Nyaya Sanhita, 2023 or under Sections 4, 6, 8 or Section 10 of the Protection of Children from Sexual Offences Act, 2012 shall be completed within two months from the date on which the information was recorded by the officer in charge of the police station. (3) …. to (8) …… (9) Nothing in this Section shall be deemed to preclude further investigation in respect of an offence after a report under sub-section (3) has been forwarded to the Magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form as the State Government may, by rules, provide; and the provisions of sub-sections (3) to (8) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub-section (3): Provided that further investigation during the trial may be conducted with the permission of the Court trying the case and the same shall be completed within a period of ninety days which may be extended with the permission of the Court. |
CHAPTER XIV: JURISDICTION OF THE CRIMINAL COURTS IN INQUIRIES AND TRIALS
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S. 209 BNSS (S. 189 – Cr.P.C.)
Change – In offences committed outside • in physical or electronic form (also) before a judicial officer in that territory or before a diplomatic or consular representative of India for that territory. |
209. Receipt of evidence relating to offences committed outside India.
When any offence alleged to have been committed in a territory outside India is being inquired into or tried under the provisions of Section 208, the |
CHAPTER XIX – TRIAL BEFORE A COURT OF SESSION (S.248 – 260)
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S. 250 BNSS (S. 227 – Cr.P.C.)
(1) application for or Discharge – time limit |
250. Discharge. (1) The accused may prefer an |
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S. 251 BNSS (S. 228 – Cr.P.C.) Change (1) Time limit for framing charge – 60 days from hearing on charge. (2) Accused can “present either physically or through audio-video electronic means.” |
251. Framing of charge.(1)(a) ….. (b) is exclusively triable by the Court, he shall frame in writing a charge against the accused within a period of sixty days from the date of first hearing on charge. (2) Where the Judge frames any charge under clause (b) of sub-s.(1), the charge shall be read and explained to the accused present either physically or through electronic means and the accused shall be asked whether he pleads guilty of the offence charged or claims to be tried. |
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S. 254 BNSS (S. 231 – Cr.P.C.) Change – Evidence of a witness • may be recorded by audio-videomeans
• evidence of any police officer or public |
254. Evidence for prosecution(1) On the date so fixed, the Judge shall proceed to take all such evidence as may be produced in support of the Provided that evidence of a witness under this sub-section may be recorded by audio-video electronic means. (2) The deposition of evidence of any police officer or public servant may be taken through audio-video electronic means. (3) ….. |
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S. 258 BNSS (S. 235 – Cr.P.C.) Change – Judgment:Period fixed – 30 days from arguments |
258. Judgment of acquittal or conviction.(1) After hearing arguments and points of law (if any), the Judge shall give a judgment in the case, as soon as possible, within a period of thirty days from the date of completion of arguments, which may for specific reasons extend to a period of sixty days. |
CHAPTER XXII – SUMMARY TRIALS (S. 283 – 288)
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S. 283 BNSS (S. 260 – Cr.P.C.) Replaces Cr.P.C. sections. Offences listed in this Section shall be tried in a summary way. (In I.P.C., summary-trial (of certain offences) was at the discretion of the Magistrate) (2) Offences punishable below 3 years The Magistrate may, after hearing the accused, and recording reasons – try all or any of the offences punishable below 3 years – in a summary way |
283. Power to try summarily. (1) Notwithstanding anything contained in this Sanhita— (a) any Chief Judicial Magistrate; (b) Magistrate of the first class, shall try in a summary way all or any of the following offences:— (i) theft….; (ii) receiving or retaining stolen property, …. value of the property does not exceed twenty thousand rupees; (iii) assisting in the concealment or disposal of stolen property …, where the value of such property does not exceed 20,000 rupees; (iv) offences under Section 330 of the BNS, 2023; |
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(v) insult with intent to provoke a breach of the peace, and criminal intimidation, under Section 349 … (vi) abetment of any of the foregoing offences; (vii) an attempt to commit any of the foregoing offences, … (viii) offence … under Section 20 of the Cattle-Trespass Act, 1871.
(2) The Magistrate may, after giving the accused a reasonable opportunity of being heard, for reasons to be recorded in writing, try in a summary way all or any of the offences not punishable with death or imprisonment for life or imprisonment for a term |
CHAPTER XXIII: PLEA BARGAINING (S. 289 – 300)
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S. 290 BNSS (S. 265B – Cr.P.C.) Change – Plea bargaining:time limit – 30 daysfrom framing of charge. |
290. Application for plea bargaining. (1) A person accused of an offence may file an application for plea bargaining within a period of thirty days from the date of framing of charge in the Court in which such offence is pending for trial. |
CHAPTER XXV: EVIDENCE IN INQUIRIES AND TRIALS (S. 307 – 336)
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S. 330 BNSS (S. 294 – Cr.P.C.) Change In calling upon (opposite side) to admit or deny the genuineness of document. New provisos • First, time limit of 30 days. (Court can relax the time limit) • Second, no expertbe called to appear, unlessreport is disputed. |
330. No formal proof of certain documents (1) Where any document is filed before any Court by the prosecution or the accused, the particulars of every such document shall be included in a list and the prosecution or the accused or the advocate for the prosecution or the accused, if any, shall be called upon to admit or deny the genuineness of each such document soon after supply of such documents and in no case later than thirty days after such supply: Provided that the Court may, in its discretion, relax the time limit with reasons to be recorded in writing: Provided further that no expert shall be called to appear before the Court unless the report of such expert is disputed by any of the parties to the trial. |
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S. 336 BNSS New “Evidence” of public servants, experts, police officers transferred, retired, or died – • “be secured” through the successor officer. |
336. Evidence of public servants, experts, police officers in certain cases. Where any document or report prepared by a public servant, scientific expert, medical officer or investigating officer is purported to be used as evidence in any inquiry, trial or otherproceeding under this Sanhita, and—
(i) such public servant, expert or officer is either transferred, retired, or died; or (ii) such public sevant, |
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public servant, expert or officer is likely to cause delay in holding the inquiry, trial or other proceeding, the Court shall secure presence of successor officer of such public servant, expert, or officer who is holding that post at the time of such deposition to give deposition on such document or report. |
CHAPTER XXVI: GENERAL PROVISIONS AS TO INQUIRIES AND TRIALS (S. 337 to 366)
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S. 349 BNSS (S. 311A – Cr.P.C.) Power of Magistrate to order to give specimen signatures or handwriting The words “or finger impressions” and “or voice sample” are new. Under S. 311A Cr.P.C., no order could be made unless the person has (at some time) been arrested in that proceeding. |
349. Power of Magistrate to order person to give specimen signatures or handwriting.If a Magistrate of the first class is satisfied that, for the purposes of any investigation or proceeding under this Sanhita, it is expedient to direct any person, including an accused person, to give specimen signatures or finger and in that case … Provided … Provided further that the Magistrate may, for the reasons to be recorded in writing, order any person to give such specimen or sample without him being arrested. |
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S. 356 BNSS New – proclaimed offenders– no immediate prospect of arresting him- •Court shall, proceed with the trial in the like manner as if he was present. |
356. Inquiry trial or judgment in absentia of proclaimed offender (1) Notwithstanding anything contained in this Sanhita or in any other law for the time being in force, when a person declared as a proclaimed offender, whether or not charged jointly, has absconded to evade trial and there is no immediate prospect of arresting him, it shall be deemed to operate as a waiver of the right of such person to be present and tried in person, and the Court shall, after recording reasons in writing, in the interest of justice, proceed with the trial in the like manner and with like effect as if he was present, under this Sanhita and pronounce the judgment. |
CHAPTER XXIX: THE JUDGMENT (S.392 – 406)
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S.398 BNSS. New – State Government shall prepare – Witness Protection Scheme |
398. Witness Protection Scheme. Every State Government shall prepare and notify a Witness Protection Scheme for the State with a view to ensure protection of the witnesses. |
CHAPTER XXXIX: MISCELLANEOUS (S.520 – 531)
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S.530 BNSS New – Trial and proceedings– |
530. Trial and proceedings to be held in electronic mode All trials, inquires and proceedings under this |
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may be held in electronic mode, by use of electronic communication or use of audio-video electronic means. |
Code, including –
(i) summons and warrant, issuance, service and |
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S. 531 BNSS
All investigations, trials, appeals, etc. pending on 1st July 2024 shall be proceeded under the provisions of the Cr.P.C. (except inquiry under Chapter XIV of the Cr.P.C. – as to Note: The offences, committed before 1st July 2024 (and its punishment), are dealt with under the I.P.C. |
531. Repeal and savings. (1) The Code of Criminal Procedure, 1973 is hereby repealed. (2) Notwithstanding such repeal— (a) if, immediately before the date on which this Sanhita comes into force, there is any appeal, application, trial, inquiry or investigation pending, then, such appeal, application, trial, inquiry or investigation shall be disposed of, continued, held or made, as the case may be, in accordance with the provisions of the Code of Criminal Procedure, 1973, as in force immediately before such commencement (hereinafter referred to as the said Code), as if this Sanhita had not come into force; |
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’.
In Quest of Justice
By K. Ramakumar, Sr. Advocate, High Court of Kerala
26/08/2024
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?
Registration of A Composite Mark : Rights and Limitations
By Febin James, Advocate, High Court of Kerala
20/08/2024
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.