Non-Conventional Trademarks: A Roadmap for India

(By Dr.Raju Narayana Swamy, IAS)

Trademark has been defined in Article 15(1) of the TRIPS Agreement as any sign or any combination of signs capable of distinguishing the goods or services of one undertaking from those of others. It portrays the nature, kind, quality and origin of a product. A brand for a company is like reputation for a person. In an era of aggressive marketing wherein new techniques are adopted by manufacturers and sellers to make their product distinct from those of potential competitors and to capture the attention of consumers, the idea of non-conventional marks has come to the forefront. The word non-conventional mark is general in scope and refers to any mark that does not fall within the traditional categories (letters, numbers, figures, symbols, pictures etc). It can be broadly classified into visual/visible marks (which include motion marks, colour marks, shape marks and holograms) and non-visible categories (which include sound marks, smell marks, taste marks, touch or feel marks etc). Classic examples of the former are the iconic red Christian Louboutin heels, the  lilac tinge used on Milka Chocolate wrappers and even the bright shade of pink attached to Matrel’s Barbie dolls all of which fall under the category of colour marks. Examples of the latter include the scent of roses of a UK tyre company and smell of beer in the dart flights of a London based company as well as the velvet touch trademark of Khvanchkara wine bottles. The trademark on the tooth paste of Glaxo Groups is also a non-conventional trademark – hologram mark to be specific.

It is worth mentioning here that though TRIPS Agreement stipulates a minimum level for protection of trademarks, it leaves a number of factors to the discretion of member countries such as the discretion to keep or not the requirements related to visual perceptibility etc., in their domestic legislation. This discretion raises a number of issues for registration and protection of non-conventional marks in different jurisdictions around the globe. Moreover non-conventional marks are often difficult to register due to issues such as functionality, graphical representation etc. The former refers to those features of the mark which are evolved out of the nature of the good or because of any essential element present in the good or service. A classic case is Nor-Am Chemical  v. O.M. Scott & Sons Co. wherein it was held that the colour blue of the fertilizer is basically because of the presence of nitrogen in it and that hence the blue colour is the functional aspect of the fertilizer. Hence no protection can be sought on the blue colour of the fertilizer which has evolved due to presence of nitrogen in it.  In fact, the reasoning behind functionality suggests the need for a more comprehensive review of the overlaps between other categories of intellectual property and trademark law.1 Here several questions arise.  For instance if Indian classical music compositions or raagas in the public domain can be registered as sound marks, how will that affect the “limited monopoly” logic of copyright law which presumes that cultural works should be freely available where copyright protection did not exist or has expired? Should we address this concern by

      a)         Not allowing public domain materials to be registered or

      b)         Granting a narrow scope of protection if they are registered or

      c)        Incorporating specific defences into trade mark law to allow third party use in a non-confusing manner?2

In the Indian context, while such new types of marks raise interesting conceptual questions, they are also of pragmatic concern to the home audience – right from the days the Indian trademark registry registered a sound mark for Yahoo3 followed by another for Allianz Aktiengesellschaft. Sound mark held by Intel has also been accepted by the Registry. ICICI Bank was the first Indian entity to obtain a registration for its jingle in 2011. The National Stock Exchange (theme song), Raymond: The Complete Man’s Musical Sequence, Britannia Industries (Four note bell sound) Cisco, Edgar Rice Burroughs, Tarzan Yell and Nokia (default ringtone of mobile) have also registered their sound marks in India.

One has also not forgotten the decision wherein the Delhi High Court responded favourably to a trademark infringement claim to protect the shape of Zippo lighters. It is however worth mentioning here that the Zippo decision4 was only of symbolic importance but of very limited precedential value as it concerned an ex parte ad interim injunction order and as there was no detailed analysis applying the infringement tests to shapes. Nevertheless the client driven interest in exploring these possibilities and in reflecting on such marks cannot be brushed aside

The Indian Legal Context

The Trademarks Act, 1999 replaced the Trade and Merchandise Act 1958. The old Act did not grant recognition to non-conventional trademarks whereas the new Act defines a trademark in Section 2(1)(zb) as “a mark capable of being represented graphically and which is capable of distinguishing the goods or services of one person from those of others and may include shape of goods, their packaging and combination of colours.” The revised definition of trademarks under the new Act has been interpreted to be wide enough to include smells, sound, taste and holograms. Graphical representation is however the sine qua non of trademark registration in India. Put in simple terms, this means that the marks should be capable of being printed in a journal or to be precise be in paper form.5 This requirement is a major hindrance to the registration of non-conventional trademarks in India. Several categories like smell and 3D structures are difficult to represent on paper and hence end up getting rejected. However a silver line in the horizon is that the Trademark Rules of 2017 (Rule 2(k)) have extended the definition of graphical representation to include representation via a digitized form as well. Despite all these, the Indian trademark laws unlike EU and US laws are rigid and devoid of flexibility resulting in fewer  registration of non-conventional trademarks vis-a-vis other jurisdictions.

a) Scent Marks

The history of olfactory or smell marks in EU dates back to 1996 when Sumitomo Rubber Company was granted such a mark for rubber tyres that smelled like rose.6 In 1999, an application for olfactory mark that claimed “freshly cut grass as applied to tennis balls” was approved. Subsequently in 2000, John Lewis of Hungerford claimed an olfactory mark on cinnamon smell that is used in relation to furniture.7 But the UK Trade Mark Office rejected the application as it was not capable of graphical representation. It was also reasoned that granting trademarks for a cinnamon aroma in furniture would prevent other traders from legitimately using it in other articles. Lack of consistency in granting olfactory marks created a confusion in the EU which was laid to rest in the Seickmann case wherein Ralf Seickmann applied to the German trademarks registry to register a scent mark. He attempted to represent the mark by

      1)         Indicating the name of the chemical substance, Methyl Cinnamate.

      2)         The structural formula for that substance (C6 H5-CH =CHCOOCH3).

      3)         Indicating laboratories where samples may be obtained.

      4)         Submitting an odour sample in a container and

      5)         Describing the scent in words as “balsamically fruity with a slight hint of

cinnamon.”

Yet each of these methods of representation was problematic. For instance the ECJ ruled that while the description “balsamically fruity with a slight hint of cinnamon” was easily accessible and intelligible, it was not clear, precise or objective. On the other hand, the chemical formula was unintelligible to lay persons. Thus according to the Sieckmann criteria, the graphical representation of a mark must be clear, precise, self-contained, easily accessible, intelligible, durable and objective. On closer scrutiny, the Sieckmann criteria seem to have been developed with traditional visual marks in mind.8 To put it a bit differently while visual marks can satisfy all seven criteria, for non visual marks this appears difficult.

A further impediment to registration of scent marks is that the smell must not originate from the essence of the product. As an instance, Chanel’s application to register its No.5 perfume as a scent mark failed on account of the fact that the peculiar scent was the very essence of the product.9

In the Indian context, Section 2(1)(zb)of the Trademark Act does not eliminate the possibility of a smell mark and in theory a smell mark could be well within the definition of a “mark”. But the graphical representation of the mark is an impediment that olfactory marks have not been able to successfully surpass. Criticisms are galore that by ignoring scent marks, the 2017 Rules promote stagnancy. Suggestions  have come forth from various quarters that techniques like gas chromatography which helps identify a compound having a certain smell can be roped in and that Madeliene camera10 which is the first one to capture scents of objects could be used.

b) Sound Marks

The landmark case in which EU got an opportunity to clarify its position as regards sound marks was Shield Mark v. Joost Kist h.o.d.n. MEMEX. In principle, the ECJ indicated that sound marks can get trade mark registration. But it added that graphical representation has to meet the criteria specified in the Sieckmann case. The ECJ stated that sound represented through a musical note on a musical stave meets all the requirements stipulated therein. But any written description describing the sound would not meet the aforesaid criteria as words do not clearly and precisely indicate rise and fall in pitch. The ECJ opined that onomatopoeia like the Kukelekuuuuu (imitation of a cockrow) represented through written description are not precise as phonetic imitation of the sound may not be exact description of the actual sound. However EU has granted sound marks to non musical representations of sound like the Tarzan’s Yell and the Metro Goldwyn Mayer’s roar of the lion if the application is accompanied by spectrogram or sonogram images.

No discussion of sound mark will be complete without a reference to Harley Davidson’s attempt to register the mark consisting of the exhaust sound of the applicant’s motor cycle produced by V-Twin common crankpin motorcycle engines when the goods are in use as a trademark. This application brought into light several questions regarding registrability of sound marks. Although the exhaust roar of Harley Davidson’s motorcycle seems to be very characteristic, Japanese manufacturers Suzuki, Kawasaki, Yamaha, Honda as well as American manufacturer Polaris objected saying that other motorcycles can also make similar sounds. Further it was not necessary that all motorcycles of Harley Davidson would produce a similar sound.

The registration requirements for sound marks in India are similar to practices in the EU. To be specific, the Rules of 2017 have crystallized the registration in the light of digitization and provide in Section 26(5) as

“Where an application for the registration of a trade mark consists of a sound as a trademark, the reproduction of the same shall be submitted in the MP3 format not exceeding thirty seconds’ length recorded on a medium which allows for easy and clearly audible replaying accompanied with a graphical representation of its notations.”

Needless to say, robust evidence of actual distinctiveness is the secret behind successful registration of a sound mark. Mention also needs to be made here that there have been no Indian cases vis-a-vis enforcement of sound marks till date.

d) Colour Marks

A land mark case in this regard is the Libertel case wherein the ECJ stated that “an abstract colour per se cannot be presumed to constitute a sign. Normally a colour is a simple property of things. Yet it may constitute a sign. That depends on the context in which it is used.”

It is also worth mentioning that if a colour is held functional for any product, then it cannot be registered. For instance, in the Saint Gobain case, it was help that purple does not just help in distinguishing the glass from other products and that it served a functional purpose.

Colour mark is still in its nascent stages in India. A crucial obstacle facing registration of single colour marks in India is the objection u/S.9(1)(a) of the Trade Marks Act 1999 as per which single colour marks are per se held to be devoid of any distinctive character, the reason being that single colours are easily available in the public domain and are part of numerous trade signs. Thus Indian law requires careful analysis along with concrete evidence exhibiting a factual distinctiveness for registration of a single colour. However, there are contradicting judicial decisions in this regard. For instance, in Colgate Palmolive Company v. Anchor Health and Beauty Care Pvt. Ltd.11, the court held that a single colour is entitled to protection under the law of passing off. But in Cipla Ltd v. M.K. Pharmaceuticals12, it was held that the single colour is not a trade mark and is incapable of protection under the law of passing off. It is also worth mentioning that in Dabur India Ltd v. Shree Baidyanath Ayuved Bhawan Pvt Ltd.13 and  Seven Towns Ltd. and Ors v. Kiddiland and others14, the Delhi High Court recognized the principle laid down in Colgate. Thus there is ambiguity and inconsistency surrounding single colour trade marks in India. However a silver line in the horizon is the ruling in the Cadbury case in UK pertaining to the colour purple.15 This might have some influence over common law countries like India.

A combination of colours however is registrable under the Trade Marks Act. Section 10(1) categorically states that

“A trademark may be limited wholly or in part to any combination of colours and any such limitation shall be taken into consideration by the tribunal having to decide on the distinctive character of the trademark”.

The applicant claiming a particular combination of colours must clearly specify so on the application form along with the exact description of the colour combination as per the International Classification system of colours. The 2017 Rules of Trademark (Rule 26(2)) also require reproduction of the trademark in a combination of colours.

Judicial decisions in this  direction are galore. In the Colgate case for instance the Court held that a combination of colours was a trademark under the Act. Moreover in Deere & Co and Ors v.. S.Harcharan Singh and Ors.16, a petition was filed for registration of its yellow and green colours along with the word mark JOHN DEERE and the leaping deer logo, all of which were held to be capable of being registered. However in the case of Britannia Industries Ltd v. ITC Ltd.17 where it has been alleged that the yellow and blue colour combination of ITC’s Sunfeast Farmlite Digestive All Good Biscuit had been copied by Britannia’s Nutri Choice Digestive Zero Biscuit, Delhi High Court opined that ITC was not entitled to an interim injunction as it had failed to prove that this colour combination had become a badge of its goodwill.

d) Movement or Motion Marks

A motion mark comprises of a moving logo, a symbol, a video, a name etc. Computer programmes and animation software help in creating motion marks. The most well known of these marks is Microsoft’s animated sequence of colored dots swirling to form its logo Another classic example is Toyota Motor Corporation’s advertisement which included a freeze frame that saw action jumping into the air at the end of an advertisement accompanied by the catchphrase “Oh What a Feeling”.  Needless to say, the right sequencing of images while depicting the series of movements is critical.

As is amply evident, an application for registration may be rejected if the motion depicted is functional to the good in question. A classic example is the rejection by EU’s OHIM of Lamborghini’s attempt to register its door motion “Lambo doors”.

Movement marks of various goods or services can be recorded in the form of a video and submitted to the Registry as they would satisfy representation in “digitized form” as required by Rule 2(k). However the Trademark Act in India does not define a motion mark. Graphical representation of such marks is also difficult as an appropriate representation of motion mark will include movement of the particular word, logo, symbol etc., of the mark along with the sound which is hard to be represented in written form. Thus motion mark in India per se cannot be presented for registration, but has to be presented as a combination of marks to the Registrar. The strict scrutiny is perhaps the reason why there have not been any instances of application for registration of such marks in India. This is in striking contrast the situation in the US where, for instance, the trademarks of Motion Pictures, 20th Century Fox Movies, Columbia Pictures are registered as motion marks and are widely known.

e) Shape marks

Unique shapes of certain goods like the coke bottle or the triangular shaped Toblerone chocolate always indicated to consumers that it originated from a particular company like the Coca Cola or the Mondelez International. But the concerns with shape marks are

a)  The shape itself may serve to perform a technical function

b)  Shapes may also be protected by design law.

 The landmark case as regards the former concern is Koninkhjke Philips v.Remington wherein the ECJ had to decide whether an electric shaver that is shaped like an equilateral triangle with three heads containing a clover leaf plate design can be granted trade mark protection. Philips which had been marketing its three header electric shaver called phillishave had registered the graphical representation of the shape and configuration of the head of the shaver as a trademark on the basis of use. Remington began to manufacture and sell its DT55 Shaver a three headed rotary shaver whose blade heads were arranged in an equilateral triangle similar to that used by Philips. Philips sued Remington for infringement of its trademark and Remington counter claimed for revocation. The High Court ordered revocation. It held that the mark lacked distinctive character and consisted exclusively of a sign which served to designate intended purpose of the goods and of a shape that was necessary to obtain a technical result. Court of Appeal after staying referred the matter to the European Court of Justice, which in turn gave its opinion on the four issues raised by the Court of Appeal.  The Court stated that a sign consisting exclusively of the shape of a product is unregistrable by virtue thereof if it is established that the essential functional features of that shape are attributable only to the technical result.

Further in Lego Juris A/S v. OHIM (The Office of Harmonisation for the Internal Market and Mega Brands), the ECJ was required to decide whether Lego brick was performing a technical function and as such should not be granted a shape mark. Lego argued that the brick had non-functional characteristics and such should be granted trademark protection. But the Court opined that the Lego brick has a rectangular shape and that the projections on the top perform technical function and as such it cannot be granted a trademark.

In the Indian context, the definition of trademark clearly seeks to protect shape marks. In fact, shape of goods receives recognition as a TM u/S.2(1) (m) and 2(1)(zb). However shape marks also have to meet the conditions of distinctiveness and graphical representation.  Moreover, Section 9(3) of the Trade Marks Act 1999 sets forth three scenarios wherein shape marks would not be allowed the benefit of protection. If the shape attained is due to the nature of goods, then it will not be granted trade mark protection. An example is round shape for a tennis ball. Further if the shape attained is necessary so as to perform a technical result, then as per S.9(3)(b) the shape will not be granted trade mark protection. This clause is similar to the decisions in Koninkhjke Philips v. Remington and in Lego Juris A/S v. OHIM. If the characteristics of an article were meant to perform a function regardless of the fact that there were non-functional traits it may not be granted protection. S.9(3)(c) of the Act excludes shapes that can be protected under patent or design law.

Indian courts have been more or less consistent in their judgments with regard to shape as a trade mark. In Lilly ICOS LLC and Anr. v. Maiden Pharmaceuticals Ltd.18 wherein it has been alleged that the almond shape of the plaintiff’s product had been copied by the defendant, the Delhi High Court passed judgment in favour of the plaintiff as it was of the opinion that the defendant had adopted such shape with deceptive intent. Moreover in Gorbatschow Vodka K.G. v. John Distilleries Ltd.19 the Bombay High Court held the shape of the plaintiff’s vodka bottles to be a trade mark and granted them an injunction against the defendants.

Conclusion

In recent years, trade mark registries have grappled with applications for silhouettes, scents, tastes, texture, short cartoons, body movements and even Tarzan’s yell as trademarks.  As the WIPO Secretariat has noted, “the diversity of signs which enterprises seek to develop as trade marks and to use in the marketplace shows that trade mark law is subject to a dynamic process.” Question such as how to adequately flatten out and represent a sound, scent or texture using words and drawings have been answered in various jurisdictions – the Yahoo registration in India being a classic case study. Read with the fact that trade mark registration systems have historically developed around paradigmatic subject matter, reconciling the conflicting imperatives calls for an overhaul of certain basic assumptions surrounding this area of IP.

Mention also needs to be made here of the discomfort generated by over-broad applications and the range of techniques used by registries and courts in response thereof – an aspect explored by various decision makers in the Dyson litigation.20 Through this application, we see the requirements of a sign (or presumably “mark” in the Indian context)- graphical representation, inherent and acquired distinctiveness and functionality all explored as methods for excluding problematic subject matter. The highlight of the decisions in Dyson is the unease that  surges through them driven by the prospect of allowing the applicant to gain a potentially permanent legal monopoly in a functional concept for vacuuming technology.

The greatest need for using non traditional trademarks arises because market-savvy companies want to design and advertise their products in such a manner that it appeals to the consumer’s aesthetic sense. But there are some underlying problems with the nature of such marks. For instance, it should not be forgotten that non conventional marks are remarkably unsteady badges of origin and are rarely used without additional word or figurative marks to back them up. No manufacturer of mineral water is likely to do away with the company name or brand and rely solely on the shape of the bottle when selling the product.

The Indian experience vis-a-vis unconventional marks has not been a saga of success. There is not a single case of registration of sensory marks (such as smell, taste and touch) in the country. Perhaps India can take a leaf out of the laws of some developed countries and enact necessary provisions in the existing statutes as well as update scientific measures.  A word of caution is needed here – the American approach of “anything goes” attitude seems to be completely unsuited to the Indian legal environment. At the same time the Sieckmann approach of Europe which ensures the courts adopt a stringent test may push out cases where business competition and consumer base expansion warrant use of such marks. The need of the hour is to widen the horizons to provide a robust and flexible structure within which we can allow the gradual evolution of this area so that Indian trademark law can catch up with modern marketing techniques.

(End Notes)

1.   WIPO Secretariat, Trademarks and their Relation with Literary and Artistic Works (SCT/16/5) Sep.1, 2006.

2.   Dev Gangjee, Non Conventional Trademarks in India, National Law School of India Review, 2010 Vol22(1).

3.   P. Manoj, Yahoo Awarded India’s First Sound Mark; Nokia in queue, Live Mint, August 22,2008; Yahoo !  Yodels into India’s Trade Mark Registry; Managing Intellectual Property Weekly News Sep 01,2008.

4.   IA7356/2006,High Court of Delhi,13July 2006,H.R.Malhotra J.

5.   Trademark Rules 2002, Rule2(k).

6.   Paul Leo Carl Torremans,”Trademark Law: Is Europe Moving Towards an Unduly Wide Approach for Anyone to Follow the Example?” (2005)10 Journal of Intellectual Property Rights 127.

7.   John Lewis of Hungerford, UK Application No.2000169.

8.   R.Burrel and M.Handler, Making Sense of Trade Mark Law, IPQ388(2003).

9.   Institut pour la Protection does Frangrances (IPF)’s Community Trade Mark Application, (2005) ETMR 42.

10.Scentography: the camera that records your favourite smells, The Guardian June 28,2013.

11.(2003) DLT 51.

12. (2007) (36) PTC 166 Del.

13. (2012) (51) PT 441) Del.).

14..            (2016) (68) PTC 308 (Del.).

15. Societe des Products Nestle SA v. Cadbury UK Ltd. (2012) EWCH 2637 (Ch).

16. (2015) (63) PTC 433 (Del.).

17. (2017) (70) PTC 66 (Del.).

18. 2009 (39)PTC  666 (Del.).

19. 2011 (47)PTC 100 (Bom.).

20.Dyson Ltd v. Registrar of Trade Marks (C-321/03)[2007] ETMR34(European Court of Justice).

Justice must not only seen to be done but must be done

(By Anoop Bhaskar, Advocate, Thiruvananthapuram)

“Your honour, the case has not been called today.”

“Counsel, that matter is posted for orders. So it won’t be called. Orders shall be passed.”

These court room exchanges have become quite common in subordinate courts of original civil jurisdiction. At times, by the end of the day the counsels will get to know the order/judgement in brief, when the e-courts or A-diary gets updated. On other occasions, when the order is not ready, the case will stand adjourned to a later day. Hardly in trial courts, the matter will stand reserved for orders without adjourning it to another date, unlike those in High Courts. Apart from these familiar circumstances, a new practice was noticed when the e-courts showed, “I.A. disposed off. Call on (date after a month)” and the next day when the counsel went to the concerned section to read the order, he was informed that the order was not ready and the case bundle was in the chamber.

Some aspects to be deliberated in the wake of these situations are:

i.     Does the practice of‘pronouncing’ orders/judgements in chambers without calling the cases in open court suffers from any illegality?

ii.   Does the application for issuance of carbon copy be necessarily in writing?

iii.   Whether the practice of withholding the orders/judgements in chambers in the name of verification/corrections, without making it available for lawyers to read, justifiable?

iv.  Is it proper to update the daily proceedings as “disposed off” without adverting to the nature of order/judgement?

It has now become a common practice that the matters posted for orders on a specified date are not called in open courts during the roll call. It is not very difficult to comprehend the reason behind this. We all know about the hefty work load on our courts and so it is quite relatable if the order is not ready on that particular day or at the time of roll call. But why should the courts be reluctant from calling these matters in open court during roll call and either adjourn it to another day or pass it over to a later point in the day for pronouncing the verdict? This is where the problem lies and needs to be corrected.

On the civil side just like in criminal courts¹, there is a duty vested on the courts to pronounce the judgment in the open court under O.XX of C.P.C.

O.XX R.1.Judgement when pronounced: (1) The Court, after the case has been heard, shall pronounce judgment in an open Court, either at once, or as soon thereafter as may be practicable and when the judgment is to be pronounced on some future day, the Court shall fix a day for that purpose, of which due notice shall be given to the parties or their pleaders.

More or less as a corollary, the parties are conferred with a substantive right to receive the copy of the judgement immediately after its pronouncement and this can be seen in
O. XX R. 6B.

O. XX R. 6B. Copies of judgments when to be made available: Where the judgment is pronounced, copies of the judgment shall be made available to the parties immediately after the pronouncement of the judgment for preferring an appeal on payment of such charges as may be specified in the rule made by the High Court.

Our High Court, through Rule 239(3) of Civil Rules of Practice has preserved these ideals and ensured that the parties and their counsels are vested with a right to obtain a carbon copy of the order/judgement immediately on the pronouncement of the verdict.

R. 239(3): Any party to the proceeding may, immediately after the judgement or order is pronounced, apply orally to court for a carbon copy or photostat copy thereof, and, if the court so directs, a carbon copy or photostat copy duly certified shall be issued to the party on his making an application for an urgent copy under Rule 246 (Rule 136) accompanied by the copying charges required by Rule 248 (Rule 138).

Though peripherally the intent of this law appears to enable a party aggrieved by the verdict to assail it before the competent court, this procedure encompasses a much larger significance in the process of administration of justice. The duty to pronounce the verdict in open court, the right to obtain its carbon copy and the duty to furnish it immediately is intended to keep a lot of factors in the process of administration of justice under check. Any deviance from these obligations, will invariably result inloss of transparency, deterrence to speedy justice and provide room for administrative or even judicial malfeasance. In short, this simple yet robust provision of law in our statute book ensures a meaningful culmination to the trial.

Furthermore, the pronouncement of an order in open court is also intended to convey its operative part to both the sides. A relief claimed can either be allowed, partly allowed or dismissed. Sometimes the court may step-in to mould the reliefs as it may deem just and fit. So when the court pronounces the verdict or updates its daily proceedings by just stating, “disposed off, it is literally forgetting its duty and foreclosing the right of a party to know the operative portion of the judgement which is enshrined under O. XX R.1(2).

O.XX R.1(2): Where a written judgment is to be pronounced, it shall be sufficient if the findings of the Court on each issue and the final order passed in the case are read out and it shall not be necessary for the Court to read out the whole judgment.

Needless to say, the counsels also have a right to be appraised of the result of their hard work and during these uncanny“disposed off” situations, this right not only gets infringed but will cast aspersions on their credibility when they cannot update their clients as to the nature of the order.

This unbecoming and rising practice among a very few courts, where the matters posted for orders are not called on that particular date and the daily proceedings just show that it has been disposed, is nothing but a futile attempt to meet the time limit orders of their higher courts and bid time to write the order/judgement. This is nothing but an illusion created by those who actually haven’t completed writing the order but wants to take the undue credit of having discharged their duty. Equally alarming is when the Courts pass verdicts which gets communicated through their daily proceedings and these verdicts stay within the chambers for corrections for many days without being made available to the counsels for reading. When this happens one may even think whether the courts are only concerned to increase their number of disposals every month without making available the copies of verdicts. The provision for carbon copy thus remains a dead letter. In fact, the essence of a carbon copy is widely being misconceived. There is a misconception that the carbon copy of a verdict should be free from errors and should resonate its final version. Our High Court in Muhammed v. Munsiff Tirur ² discussed the intent behind carbon copies and made it clear that a carbon copy is the copy of the order/judgement as pronounced on the date of order/judgement. It need not be a copy free from typographical or grammatical errors or even be a fair copy prepared after furnishing the memo of costs. In short, it should be the exact copy of the paper/s that is before the judicial officer when the verdict is pronounced and the parties or their counsels have the right to access it without any undue delay. Unfortunately, most of us for some reason believe that a carbon copy is an expedited version of the fair copy. Almost all carbon copies these days resonate the fair copies. Furthermore, it has become a practice to apply for carbon copies through a written application accompanied by an urgent copy application subsequent to the date of order.

This practice was evolved due to the non-pronouncement of verdicts in open courts as the counsels were robbed off their rights to orally apply for carbon copies. It will be appropriate to remind ourselves that law contemplates carbon copy applications to be made orally in open court followed by a subsequent application for urgent copy in writing.

Let these alien practices be deprecated as they seriously hamper the institution of administration of justice, despite it appear to be trivial and harmless. Lest one forget that the duties and rights discussed above have an inseparable nexus with the pristine idea of fair trail and any exercise to whittle it down will only invite injustice. We have been constantly reminded through the words of Lord Hewart that, “justice must not only be done but must also seen to be done” ³. Now I doubt, a very few have been carried away by this tenet and they give too much weightage to its latter portion and forget the former. Which makes me to say, “justice must not only seen to be done but must be done”.

Foot Note:

1. See Section 353 of The Code of Criminal Procedure, 1973.

2. 1997 (2) KLT 412.

3. See Rex v. Sussex Justices (1924) 1 KB 256.

Commemorating ‘MKD’

(By Justice C.K. Abdul Rehim, Chairman, Kerala Administrative Tribunal)

(Inaugural Speech of Justice C.K.Abdul Rehim, Chairman, Kerala Administrative Tribunal delivered at Thalassery in the Professional Development Programme for Advocates, organized by NUALS and the Kerala Bar Council on 20.08.2022)

 It is with much pride and privilege that I am participating in this programme as a guest to inaugurate the second in series of the ‘Professional Development Programme for Advocates’ organized at Thalassery under joint auspicious of “Senior Advocate M.K. Damodaran International Centre for Excellence in Law” established at NUALS and the Bar Council of Kerala.

2. It is a moment of mixed emotions for me to commemorate upon “Senior Advocate Late Sri. M.K. Damodaran at this historically acclaimed land of Thalassery, which is one of the oldest court centres in Kerala and which had completed more than two centuries in its functioning and contributed a lot to development of the judicial system in this State.

3. Born in the year 1937, to a gifted father, who lived only as a Peon at the Brennan College, Thalassery, Sri.Muthalarath Kurungodan Damodaran, popularly known among the legal fraternity as ‘MKD’ and as ‘Damuvettan’ for those who are in the close personal circle, is a man who created histories and benchmarks not only in the profession of law, but also in the social fabric of this State.

4. Having completed graduation from Brennan College, Thalassery, he pursued studies in law at the Government Law College, Ernakulam. Enrolled as a Lawyer in the year 1964, he started practice at Thalassery Bar under the able guidance of a veteran lawyer of the time, Adv. A.V.K. Nair. Mr. Damodaran gained confidence to start independent practice within a short span of time and concentrated in trials of criminal cases, especially in murder cases, spreaded over various Sessions Courts at Thalassery, Vadakara, Kozhikode, Kasaragod etc. Consecutive acquittals secured in various notorious cases like, Thalassery – Pulpally naxalite murder cases and in many other sensational cases, made Sri. M.K. Damodaran famous in the field of trial in murder cases.

5. Social and political life of Adv. M.K.Damodaran began from his school age. While he was studying at the Brennan College, he became President of the District Committee of Kerala Students Federation. Later he became a State leader of that organization. Close acquaintance which Sri.M.K. Damodaran had with many historic leaders of the Communist Party of India, moulded his social outlook and personal character to a man with utmost integrity and unblemished life styles. His readiness to accept and respect others without any inhibitions and the empathy which he bestowed upon the fellow beings, especially to those who are in the lower strata of the society, made him more humane and commended respect of people. But the political allegiance and activism of Sri.Damodaran created trouble, that during emergency declared in the Nation he was arrested and put to prison under preventive detention. After about 8 months’ life in prison, when got released, he shifted practice to the High Court of Kerala, in the year 1977.

6. For about four decades, from 1977 till his heavenly abode on 26th August 2017, MKD could make remarkable contributions to the legal fraternity as well as to the judicial system in the State. He became immortal among the fraternity, but not the least was his contributions to the Society. He became the Advocate General of Kerala in the year 1996, when Sri. E.K.Nayanar was the Chief Minister of the State. In the corridors of the High Court, name of Sri. M.K.Damodaran was known as a sure helping hand for anybody who is in acute crisis, whether the matter be professional or personal.

7. Contributions of Sri.M.K.Damodaran as Advocate General of the State and as a respectable Senior Advocate in the High Court, in the establishment of the National University for Advanced Legal Studies (NUALS) as well as in the construction of the ‘Chamber Complex’ for lawyers, was remarkable and will be remembered for ever.

Sri. M.K.Damodaran had conducted many celebrated cases in the meanwhile, in which his clientele included various celebrated leaders of the State; from the present Chief Minister in the SNC - Lavalin case, Late Sri. M.K.Mani in the Bar bribery case, Sri.P.K.Kunhalikutty in the “Ice Cream Parlour’ case etc. Panoor Soman murder case was an illustrious example of his professional acumen. He had also defended Sri. M.V.Jayarajan in the suo motu contempt case in the High Court.

8. Late Sri. M.K. Damodaran lived an unparalleled social life with a well defined social agenda. He used to remark; ‘Karnan’ in ‘Mahabharata’ was his role model in the matter of guiding and helping others with total selflessness and magnanimity. Anybody who dedicate their life for social causes can safely follow the path led by Sri. M.K.Damodaran, with total commitment and awareness to causes in the society.

9. The message to the society which life of Senior Advocate Sri. M.K.Damodaran left back, assumes much significance in the contemporary social scenario, where divisions among the citizenry of this country is increasing at an alarmingly high rate. Propagation of ideologies based on communalism is increasing at a sky rocketing pace. Attempts to ruin the harmonious social fabric knitted on the patriotism of this great country, is causing loss to the great values upon which the nation was founded and built up. The legal system of this country owes duty to undertake a pro-active role in curbing these evils and in protecting the great objectives upon which our country was constituted. As enshrined in the preamble of the Constitution of this great nation, which is even now supposed to be the finest model of democratic governance, it is “we, the people of India”, who alone can be the saver and protector of the nation. It is a cardinal obligation bestowed upon “we, the people of India” to shoulder tireless and unending efforts in securing Justice, Equality, Liberty and Fraternity to all the citizens of this country, irrespective of any divisions and differences. Who will lead such attempts and who will sacrifies for achieving the goals, becomes a great question now pointed upon the face of the nation. The judiciary and the legal system upon which the people of this country still repose confidence and hopes, alone can lead the torch and motivate ‘we the people of India’ to strive to sustain all the values, rights and morals, which are at real stakes in the present situation. It is time for those who are part of the legal system to rededicate ourself to the noble cause of rendering service to the society for promoting remedial measures to protect our great nation, which survived and developed through the last 75 years. It is we, who has to be the motivators and simulators in providing all the technics and tools for the struggle against all the evils, which are destroying the values prevalent in this country. In all such efforts, let the life of Sri.M.K. Damodaran be our hope, inspiration and guidance.

10. The ‘Professional Development Programme” undertaken by the organizers herein will definitely contribute for betterment of the efforts described henceforth. It is an apposite cause which now shouldered by the NUALS and the Bar Council. I take this opportunity to congratulate the organizing partners and all the stake holders in arranging as well as attempting this excellent venture. I wish there will be fruitful and meaningful interactions during the course of the day. The noble cause of commemorating Senior Advocate Late Sri. M.K. Damodaran through such a meaningful effort need be continued in future as well. Thanking the organizers for being invited me to became part of this occasion, I declare the programme officially inaugurated. With all warm wishes to each one present here, I conclude.

Thank you,

                                                                                          Jai Hind.

Legal Heirs and Legal Representatives in Rent Control Proceedings

(By P.B. Menon, Advocate, Palakkad)

The question posed for consideration before legal minds is this.

Has a legal representative any part to play and as such could be impleaded on the death of a tenant in eviction applications or appeals or review.

Is there not a conflict between the two Sections in Act 2/65 – Sections 2(6) and 22.

Section 2(6) speaks of legal heirs of the deceased tenant who are the statutory tenants for the purpose of rent control proceedings.

But Section 22 says the provision of S.146 and O.XXII of the Code of Civil Procedure 1908, shall as far as possible be applicable to the proceedings under this Act.

The expression legal representative as defined in C.P.C. is of wider import which expression takes in not only legal heirs but others who intermeddles with the estate of the deceased. There a legatee under a Will is included as a legal heir but for the purpose of Rent Control proceedings he is excluded as he is a testamentary heir and that the words legal heir are used in S.2(6) not in a popular sense. See 2004 (2) KLT 575 a judgment with lucid exposition of law by Justice K.S.Radhakrishnan as he then was.

Thus the S.22 in Act 2/65 is not properly drafted is evident and the words as far as possible therein do not improve the situation. Naturally Judges may have to interpret the words ‘legal representatives’ in S.22 the Act 2/65 as “legal heirs.”

Prohibition of Child Marriage (Amendment) Bill, 2021 –

A Milestone Towards Social Uniformity

(By Devi  A.R., Section Officer, Law Department, Govt.Secretariat, Thiruvananthapuram)

In a welfare State the primary and ultimate goal of a statutory law is to control the human conduct in such a way to maintain social order.Unity in diversity is such an ideal concept to keep the different societal group under an umbrella but when it comes to its practical operation some kind of uniformity should be there to keep those unities flourishing.

Coming straight off to the new proposal of the Union Ministry to raise the minimum age of marriage of women to 21¹. Prohibition of Child Marriage (Amendment) Bill, 2021 seeks to prohibit solemnisation of child marriage in our society and to bring the women in par with men in terms of marriageable age. The bill is supposed to make uniformity in different groups of the society by making the marriageable age uniform to every one irrespective of their religion and also to make uniformity in marriageable age of men and women.

Prohibition of Child Marriage (Amendment) Bill, 2021

The Prohibition of Child Marriage (Amendment) Bill, 2021 is proposed to seek achieve the following object:- (i) amend the Prohibition of Child Marriage Act, 2006, to reinforce its application overriding all other existing laws, including any custom, usage or practice governing the parties in relation to marriage; (ii) bring women at par with men in terms of marriageable age; (iii) prohibit child marriage irrespective of any law, custom, usage or practice governing the parties; (iv) declare that provisions of the Act shall have overriding effect over every other law, custom, usage or practice governing the parties; (v) make consequential amendments to the other laws relating to marriage; and (vi) make the amendments effective, in relation to marriageable age, two years from the date the Bill receives assent of the President, so as to provide sufficient opportunity to one and all in our collective efforts and inclusive growth, and to make effective other provisions immediately.

Law Commission report on minimum marriageable age

The 18th Law Commission as per its 205th report² submitted proposal to amend the Prohibition of Child Marriage Act, 2006 & other allied Laws suggested as follows:“The age of marriage for both boys and girls should be 18 years as there is no scientific reason why this should be different. Consequently the present Section 2(a) of the PCMA should be deleted and replaced by the following Section 2(a):- “(a) ‘child’ means a person who has not completed 18 years of age.”

If the women at 18 can select the Government why not the partner

“If the women at 18 can select the Government why not the partner?”is the query raised by the various societal groups but this mistrust has no scope for discussion in the present bill because the capability of a person to make choices is not challenged in the bill. Every law is made for its own explicit purpose.This bill seeks to prohibit the child marriage in the society and for that particular purpose the marriageable age of women is raised. It is also a constitutional mandate to maintain equality in case of marriageable age as the protective discrimination for women is not attracted here.

Amendment in Child Marriage Act- is it move towards UCC?

As per the bill, the new minimum marriageable age of women shall prevail over all the personal laws therefore, the legal age of marriage will be raised for all females regardless of their religion.It seeks to amend seven personal laws – Hindu Marriage Act, Hindu Minority and Guardianship Act and the Foreign Marriage Act, Indian Christian Marriage Act, Parsi Marriage and Divorce Act, Muslim Personal Law (Shariat) Application Act and the Special Marriage Act. It is implicit from the above provision in the bill, apart from the main goal of social uniformity and welfare it may be a stepping stone towards the conitutional mandate under the directive principles of State policy to secure uniform civil code to its people.

Conclusion:The purpose to be achieved by the Prohibition of Child Marriage (Amendment) Bill, 2021 is clear from the statement and objectives of the bill. It is intended    to prohibit solemnisation of child marriage and to secure the constitutional mandate of gender equality in marriageable age among men and women. The social welfare and uniformity intended by the legislature cannot be ignored only for the cause that it may be explored as a stepping stone towards uniform civil code. The new amendment should definitely be viewed as the   milestone towards social uniformity and welfare.

Foot Note:

1. https://prsindia.org/files/bills_acts/bills_parliament/2021

2. https://lawcommissionofindia.nic.in/reports/report205.pdf