Posts by Vikasnagwan

In re-opening economy- What should business owners do to fight counterfeits/Fakes?

What Should Your Business should Do to fight counterfeit goods?

With the current reopening economy Countries are gradually opening the industries and borders.
The covid-19 has completely transformed our life, work style and shopping habits. Now more consumers are staying home so there has been a major shift to e-commerce. Although it is impossible to predict the long-term effect of covid-19 on retail industry. With the rise of e-commerce there are new threats as this time is being used as an opportunity by fraudsters.

The COVID-19 pandemic is wreaking havoc across all industries for essential/ non-essential products, thereby creating opportunities for counterfeiters who are taking advantage of the massive shift to panic buying among consumers worldwide.

Change in buying patterns
Right now the production is almost nill hence there are great chances that the market may be flooded with counterfeit goods and customers end up buying fake products. The current situation has caused, consumers to purchase goods both essential and non-essential in bulk without doing their due diligence. This change in purchase pattern will rise to counterfeiting due to high profits based on increased prices and bulk purchases by consumers of low quality goods.

It may be due to:
• counterfeiters directly manipulate the market through online stores, groups etc.
• companies aren’t able to complete due diligence process;


What should you do to fight counterfeit goods?
As per the current market trend the counterfeit products and services will continue to grow resulting into decreased market share for legitimate brand owners and hurting their brand image. The bugger problem is the harm to the consumer due to low quality/sub standard goods.

Every brand has to take measures to combat fakes and to protect its brand in the market.

The following strategies might help:.
Brand Protection and Anti-Counterfeiting Strategies:
Conduct an internal audit for a standard operating procedure for brand security- This assessment will help the companies to determine how their brands and products are protected in terms of legal security. Pay good attention to the distribution network.
Key intellectual property rights registry– Ensure that all intellectual property rights are registered and corrected in countries where the products are designed, produced, assembled and marketed. Until and unles the intellectual property is registered, companies cannot enforce removal of a fraudulent listing.


Routine monitoring of unauthorized use of your brands.
1. Online surveillance– Internet searches for proof of infringing activity are important. The de-listing or deleting infringing listings or domains in full and on a regular basis is necessary.
2. Physical surveillance– Companies should monitor major retailers and purchase store and legitimate sites to determine whether customer orders are being fulfilled with authentic products and also, monitoring products that are returned shall also help to identify the source in case of fakes.


Targeted enforcement.
1. Identify the market place where the fake goods are being sold.
2. Send cease and desist demands to infringers. If letters to cease and desist do not rectify the issue, and when particular counterfeiting activities are detected, different levels of enforcement should be considered.
3. Keep your consumers updated. Train & Educate your consumers so as to how to know if a product is fake or not.

Quick and effective communication can build brand loyalty.
To control the issue of counterfeiting amid COVID-19, companies need to have smarter enforcement, greater communication and exchange of knowledge. The ongoing battle against counterfeiters needs a 360 degree cooperation of manufacturers, IPR holders and brand owners, e-commerce sites, search engines and consumers.

Our legal system is already strong and diligent enough to enforce Intellectual property rights.

burden cannot be shifted upon the complainant to prove the debt or liability, without appreciating the presumption under Section 139

Hon’ble supreme court in APS FOREX SERVICES PVT LTD V/S SHAKTI INTERNATIONAL FASHION LINKERS & ORS has observed that burden cannot be shifted upon the complainant to prove the debt or liability, without appreciating the presumption under Section 139

The Hon’be apex court trhough a division bench of Hon’ble Judges: Ashok Bhushan and M R Shah passed the order.

Facts Note:
Negotiable Instruments Act, 1881, Sections 139 and 138-Appeal against acquittal-Accused took plea that cheque was given by way of security-Courts below shifted burden to prove debt upon complainant.

Held – Accused has admitted the issuance of the cheques and his signature on the cheque and that the cheque in question was issued for the second time, after the earlier cheques were dishonoured and that even according to the accused some amount was due and payable, there is a presumption under Section 139 that there exists a legally enforceable debt or liability-Story put forward by the accused that the cheques were given by way of security is not believable in absence of further evidence to rebut the presumption and more particularly the cheque in question was issued for the second time, after the earlier cheques were dishonoured-Both, Courts, have committed error in shifting the burden upon the complainant to prove the debt or liability, without appreciating the presumption under Section 139.

Similar words may be registered as Trademarks

The supreme court in NANDHINI DELUXE V/S KARNATAKA CO-OPERATIVE MILK PRODUCERS FEDERATION LTD has held that wherein the Respondent was dealing with business of milk product and the Respondent applied for trade mark Nandini and got same registered in its favour. The trademark was opposed on ground that it is deceptively similar to the mark of respondent. The apex court held that not only visual appearance of the two marks is different, they even relate to different products, manner in which they are traded by the appellant and respondent respectively, it is difficult to imagine that an average man of ordinary intelligence would associate the goods of the appellant as that of respondent.

Facts:
The dispute pertains to the use of mark ‘NANDHINI’. The respondent herein, which is a Cooperative Federation of the Milk Producers of Karnataka, adopted the aforesaid mark ‘NANDINI’ in the year 1985 and under this brand name it has been producing and selling milk and milk products. It has got registration of this mark as well under Class 29 and Class 30. The appellant herein, on the other hand, is in the business of running restaurants and it adopted the mark ‘NANDHINI’ for its restaurants in the year 1989 and applied for registration of the said mark in respect of various foodstuff items sold by it in its restaurants. The respondent had opposed the registration and the objections of the respondent were dismissed by the Deputy Registrar of the Trade Mark.

Observation:
The Hon’ble apex court has observed that the nature and style of the business of the appellant and the respondent are altogether different. Whereas respondent is a Cooperative Federation of Milk Producers of Karnataka and is producing and selling milk and milk products under the mark ‘NANDINI’, the business of the appellant is that of running restaurants and the registration of mark ‘NANDHINI’ as sought by the appellant is in respect of various foodstuffs sold by it in its restaurants.
Since not only visual appearance of the two marks is different, they even relate to different products. Further, the manner in which they are traded by the appellant and respondent respectively, highlighted above, hence it is difficult to imagine that an average man of ordinary intelligence would associate the goods of the appellant as that of the respondent.

Indian courts cannot appoint arbitrator in matters where the seat of arbitration is outside India

Indian courts cannot appoint arbitrator in matters where the seat of arbitration in outside India

The Hon’ble supreme court through a three judges bench comprising of HMJ R Banumathi, A S Bopanna, Hrishikesh Roy in MANKASTU IMPEX PRIVATE LIMITED V/S AIRVISUAL LIMITED 2020 has observed that

Facts
A petition has been filed under Section 11(6) of the Arbitration and Conciliation Act, 1996 read with Arbitration and Conciliation (Amendment) Act, 2015 read with the Appointment of Arbitrator by the Chief Justice of India Scheme, 1996 seeking appointment of a sole arbitrator under Clause 17.2 of the Memorandum of Understanding dated 12.09.2016 between petitioner-Company incorporated in India and respondent incorporated under the laws of Hong Kong.
Observation:
The Hon’ble Apex court held that the moment the seat (of arbitration) is designated, it is akin to an exclusive jurisdiction clause. The parties may choose a seat as a neutral venue through an arbitration clause. The neutral venue may not in the classical sense have jurisdiction – that is, no part of the cause of action may have arisen at the neutral venue and neither would any of the provisions of Sections 16 to 21 of CPC be attracted.

The Hon’ble Supreme Court of India further discussed the case BHARAT ALUMINIUM COMPANY V. KAISER ALUMINIUM TECHNICAL SERVICES INC, 2012 9 SCC 552 wherein in para (161) it was held that “…..on a logical and schematic construction of Arbitration Act, 1996, the Indian Courts do not have the power to grant interim measures when the seat of arbitration is outside India….”. If the arbitration agreement is found to have seat of arbitration outside India, then the Indian Courts cannot exercise supervisory jurisdiction over the award or pass interim orders. It would have therefore been necessary for the parties to incorporate Clause 17.3 that parties have agreed that a party may seek interim relief for which Delhi Courts would have jurisdiction.

In the present case where in arbitration clause the please of arbitration has been mentioned as Hong Kong hence the Indian courts would not have jurisdiction to appoint the arbitrator as the seat of arbitration is outside India.

Hello world!

I often wonder, how life would be if I had not become a lawyer. Would I be working as an engineer in some multi national company or would have been a part of Indian Administrative Services?; and i have no answer to any of these questions.

I became an engineer and started preparing of IAS. Meanwhile by the grace of God I also secured a seat in LL.B. course. In the first year the first subject was Constitution of India (it was also a part of curriculum of UPSC). So as a hardworking student i started learning about our constitution. It changed my life.

Well that was the day, I was married to Law. I left my UPSC preparation got scolded, discouraged and demotivated by many people around me.

I do not regret my decision, i cannot see myself in any other profession. I have learnt many things after I became a lawyer but most importantly law made me a better person.

I want to share my knowledge, experience and current legal trends with young lawyers and law students so that they could become better lawyers with their heart in the right place.

This is how I pay my dues to the society!