Sunday, May 13, 2018
The National Company Law Tribunal (NCLT) has suggested to IBBI that there is a need to review the insolvency code regulations to ensure that they are not "misused or misinterpreted".
It also said that the resolution professional (RP) should be competent and independent so that there are no interruptions in the process which lead to delays in disposal of insolvency cases.
Besides, it has said the claims of operational creditors are neglected or ignored as the Committee of Creditors (CoC) has supremacy of the financial creditors (banks and financial institutions) who have control over the entire process.
Nobody is taking care of operational creditors' claim, said the NCLT Kolkata Bench in its order passed last week on the Binani Cement.
"It is time to recognise their voice also in the committee of creditors," it said, suggesting changes to the Insolvency and Bankruptcy Board of India (IBBI).
In the 60-page order, the tribunal has also raised concern about the functioning of RPs, saying it has been receiving several pleas from stakeholders on issues such as transparency, arbitrariness and delays in the process.
"The adjudicating authority (NCLT) is facing too much interruption from various stakeholders. Till date we have never come across any frivolous application. All come with a genuine grievance. All challenge the independence of the resolution professional and lack of transparency, competency and arbitrariness in the matter of resolution process," said NCLT.
While citing Binani Cement case, the tribunal said: "In the case in hand, 12 applicants came forward ...for not following the process mandated under the code by the resolution process. The arbitrary way of dealing with the cases has always led to interruptions and also caused delay in disposal of cases."
According to NCLT, while there is a need for reforming the regulations of the insolvency code to ensure that it is not misused or misinterpreted, there can not be any question that independence and competency of RPs are essential for preserving the objective of the code in a transparent manner leaving no room for interruption from any corner.
The NCLT Bench of Member-Judicial Madan B Gosavi and Jinan K R said: "Hopefully, we believe that IBBI take note of all the above observations and do the needful review of the code and regulation."
Referring to the Binani Cement case, NCLT said here the RP is a CA by profession and he failed to take business decisions to run the corporate debtor on his own. He managed to run the company by appointing about 22 representatives, who are from his own partnership.
A resolution professional, like the RP in a case of this nature, needs some basic training for handling the resolution independently, efficiently and tackle the multiple questions from different stakeholders, said NCLT order, passed on May 2.
"Whenever a question arises, even if answerable by the RP independently or with advice from his advisors, he comes to adjudicating authority... He shifts that burden too to the adjudicating authority," the bench said.
A woman can lodge a complaint under the domestic violence law against the excesses committed by her husband even after the dissolution of marriage, the Supreme Court has said.
The top court refused to interfere with the order of the Rajasthan High Court which held that the absence of subsisting domestic relationship in no manner prevents a court from granting relief to the aggrieved woman.
The high court had passed the order while adjudicating a matrimonial dispute.
A bench of justices Ranjan Gogoi, R Banumathi and Navin Sinha dismissed the appeal against the high court verdict, saying it was not inclined to interfere with the order in the facts of the case.
It was contented that husband-wife relationship often ends on an acrimonious note and if the provisions of the Act were allowed to be used retrospectively, then it would further increase the acrimony and rule out the possibility of any compromise.
He said that legislature's purposive interpretation has to be kept in mind while interpreting any provisions of the law.
The bench, however, refused to agree and declined to interfere with the high court order in the facts of the case.
The high court had held on October 30, 2013 that the subsistence of marriage or domestic relationship was not a condition precedent for an aggrieved person to invoke the protection orders and other reliefs under the provisions of the Act.
"If the aggrieved person had been in domestic relationship at any point of time even prior to coming into the force of the Act and was subjected to domestic violence, the person is entitled to invoke the remedial measures provided under the Act,
The high court had said cited an example saying that even after the dissolution of marriage between the parties, if an ex-husband attempts to commit an act of violence such as entering the place of employment of the divorced wife, trying to establish contact with her or causing violence to her dependents or other relatives, she is not precluded from seeking protection orders under the law.
If the divorced husband attempts to dispossess the woman from the shared household or property jointly owned, she can approach a court for appropriate relief.
Friday, May 11, 2018
A five-judge constitution bench of the Supreme Court headed by Chief Justice of India (CJI) Dipak Misra on Thursday reserved its judgement on the Aadhaar matter. Several appeals were filed challenging the constitutional validity of Aadhaar. Supreme Court judge Justice D Y Chandrachud, while hearing the petitions challenging the Aadhaar scheme's constitutional validity, on Wednesday recalled a personal experience of how his mother, who was suffering from Alzheimer's disease, had faced difficulty in authentication to get her pension.
The judgement was reserved after a marathon hearing which went on for 38 days spanning four months.
2) Justice Chandrachud's mother had to authenticate ID every month for her pension:Aadhaar authentication failures could create problems for those in need and some solution had to be found to address the issue, said the Bench, also comprising Justices A K Sikri, A M Khanwilkar, and Ashok Bhushan. Recalling his experience, Justice Chandrachud said "my mother, who was suffering from Alzheimer's disease was entitled to family pension being the wife of a former Chief Justice of India (late Justice Y V Chandrachud)".
3) Senior advocate says 90-year-old woman who is unwell being threatened by bank over Aadhaar: The apex court judge was responding to the arguments of senior advocate Shyam Divan, appearing for former High Court judge Justice (Retd) K S Puttaswamy, who said a 90-year-old woman suffering from various ailments is being threatened that her bank account could be closed for non-authentication by Aadhaar.
4) Senior advocate tries to poke holes in World Bank report praising Aadhaar: Divan sought to assail a World Bank report which had praised the Aadhaar project and which was relied upon by the government to bolster its case for the 12-digit unique identification number. He said the World Bank had partnered with a private entity for preparing the report titled 'Identification for Development'.
Delhi High Court in the case Ferrero Spa & Nr vs M/S Ruchi International & Anr [CS(COMM) 76/2018] has ruled in favor of the Ferrero Spa (hereinafter referred to as the 'Plaintiffs'). A suit was filed for permanent injunction and related reliefs against the infringement of the Plaintiff's product and trade dress of FERRERO ROCHER chocolate. Defendant no. 1, who was an importer and marketer of chocolates under the brand name 'Golden Passion' settled the matter amicably outside Court, however, Defendant no. 2, manufacturer of the chocolates under the mark Golden Passion in China, did not appear before the Court, and an ex parte interim order was passed against him. Despite service of the same, Defendant no. 2 had not ceased the sale of the impugned product. The Court found in favor of the Plaintiff and imposed costs and damages worth INR 10 Lakhs (USD 14989 approx.).
In the above case, the Plaintiff is a part of the Ferrero Group, founded in 1946. Being ranked amongst the 4 biggest confectionary producers worldwide, it is the most reputable company in the world, according to the Reputation Institute Survey of 2009, as reported in the Economist and Forbes Magazines. However, the Plaintiffs conduct their business in India officially through Ferrero India Private Limited (hereinafter referred to as Plaintiff No. 2), incorporated in the year 2008.
During the pendency of the suit, there was a settlement reached between the Plaintiff and the Defendant No. 1, an importer and marketer of chocolates under the brand-name Golden Passion in India which are also look-alikes of Plaintiff's chocolates sold under the FERRERO ROCHER trademark. Vide the settlement, a compromise decree was passed vide order dated May 26, 2016. Whereas, none appeared on behalf of Defendant No. 2, which is the entity manufacturing and exporting chocolates under the brand Golden Passion to India, the suit proceeded being treated ex- parte against him.
Major Contentions by the Plaintiffs
- The Plaintiff's mark FERRERO ROCHER has been declared as a well-known mark by the Delhi High Court vide order dated March 13, 2004 in CS (OS) 404/2012.
- Further, the Plaintiff's contend that the label, shape and other characteristic features of the packaging of the Plaintiff's 'FERRERO ROCHER' chocolate specialties, which constitute its trade-dress are entitled to protection as being well-known marks as they satisfy the criteria mentioned in Section 11 (6) of the Trade Marks Act, 1999. The chocolate products sold by the Defendants and the packaging in which they are sold are identical to that of the packaging of the Plaintiff's FERRERO ROCHER chocolate specialties and the striking similarity between the Plaintiff's FERRERO ROCHER chocolates and those of the Defendant's has been enumerated in the plaint.
- Such misuse by the Defendants of the identical and/or deceptively similar trademarks, trade dress creates a mistaken impression in the minds of consumers that:
- the Defendants products/services emanate from the Plaintiff's themselves;
- the Defendants are permitted and authorized users of the Plaintiff's trademark; and
- there is a nexus between the Defendants and the Plaintiffs.
- The Court vide order dated March 26, 2014, had restrained the Defendants from
- manufacturing, selling, offering for sale, advertising, directly or indirectly, dealing in any manner with the impugned Golden Chocolate product or any other product leading to infringement of the Plaintiff's trademarks and trade-dress;
- using the trade-dress, packaging, color combination, layout, get-up designed to imitate the Plaintiffs' FERRERO ROCHER trademark and trade-dress leading to dilution of the Plaintiff's trademark and trade-dress and unfair competition vis-avis the Plaintiff's business under the FERRERO ROCHER trademarks and tradedress.
- Even though, an injunction order was passed against Defendant No.2, it is still continuing to sell its Golden Passion chocolates in India, as is evident from the documents. The Defendant No.2 is continuing to sell numerous products which are a look alike of the FERRERO ROCHER chocolates under the brand ROWANSA and as part of its Golden Series of chocolates.
- The acts of the Defendants in adopting and using the identical/deceptively similar impugned mark and dress in respect of identical goods has caused and will continue to cause irreparable damage and loss to the Plaintiffs business. Further, the impugned mark which forms a part of their trading name, infringes the rights of the Plaintiffs under Section 29 (5) of the Act. The Defendant No.2 is rather dealing in the goods which are identical to the goods of the Plaintiffs.
- It was initially submitted by the Plaintiffs that the Court must also grant punitive damages taking into account the mala fide conduct of the Defendants, which is clearly not proportional to the quantum of actual damages that the Plaintiff has proven through documentary evidence filed in the suit on the following factors, i.e., Defendant No.2 despite service, chose not to contest the present proceedings; and it has been in contempt of the injunction order dated May 09, .2014, and has been exporting infringing chocolates to India and making them available for sale through online websites.
Contentions by the Defendants
The Defendants did not file any written statement in the suit. They also failed to admit or deny the documents of the Plaintiffs, and thus the Court proceeded to decide the case ex parte.
Observations by the Court
The Plaintiff has suffered immense loss to goodwill and reputation and hence, is entitled to a grant of damages not only in terms of compensatory damages but also in the form of punitive damages.
The Court held that since Defendant No.2 reclused itself from the proceedings, it cannot be permitted to enjoy the benefits of evasion or covert priorities as they have been selling the goods and continuing to infringe the Plaintiff's mark. The Court passed a permanent injunction in favour of the Plaintiff and awarded damages to the Defendant No.2. where a decree for a sum of INR 10 Lakhs (USD 14989 approx.) was passed against Defendant No.2, on account of infringing the registered marks, trade dress and violating the interim order. The Plaintiffs were also entitled to interest @ 10% per annum on the damages so awarded from the date of filing of the suit till the date of realization. Proportionate costs of the suit were also awarded to the Plaintiffs and against the Defendant No.2.
Tuesday, June 20, 2017
Supreme Court on Friday stayed the National Green Tribunal (NGT) order directing demolition of five resorts in Kasauli in Himachal Pradesh, which were either constructed or expanded without adequate approvals from authorities.
Although a bench of Justices R K Agrawal and Sanjay Kishan Kaul said the resort owners had to justify construction without approval from local authorities, but granted interim stay on the NGT order.
The NGT had on May 30 directed Bird's View Resort, Chelsea Resorts, Hotel Pine View, Narayani Guest House and Nilgiri Hotel to demolish their "unauthorised structures". The tribunal had also directed the resorts to pay up for the environmental destruction caused by them. The Bird's View Hotel was directed to pay an environmental compensation of Rs 5 lakh while Chelsea Resorts, Hotel Pine View, Narayani Guest House were directed to pay Rs 7 lakh each. Nilgiri hotel was directed to pay Rs 10 lakh.
"We direct that the unauthorised and illegal construction raised in violation of the planning laws affecting environment, ecology and natural resources adversely, should be demolished in terms of the provisions of the NGT Act of 2010," the NGT had said.
The tribunal had passed the order on a plea filed by Society for Preservation of Kasauli and its Environs (SPOKE) alleging that Bird's View Hotel added a 3-storey structure adjoining the existing building without obtaining prior approval from Town & Country Planner (TCP) and Chelsea Resorts made four building blocks instead of two approved by the TCP.
It had alleged that Hotel Pine View constructed a 7-storey structure in two inter-connecting building blocks as against only three storey in one block that was approved. Narayani Guest House constructed a 6-storey building as against the approval of three storey, while Nilgiri Hotel constructed four extra storeys, it had contended before the tribunal.
Cloudtail India Pvt. Ltd, the joint venture of Amazon, has received an injunction from the Delhi High Court against telecom technology company Excel Telesonic. Excel Telesonic has been asked to stop using the alleged “deceptively similar name” – ‘Cloudtele.’
Cloudtail had taken the company to court last month and sought damages worth INR 1 Cr.
Cloudtail sought a “decree of permanent injunction restraining the defendant, its directors, officers, servants and agents and all others acting for and on their behalf from using, depicting, displaying in any manner whatsoever, the trademark trade name Cloudtele or any other deceptively similar trademark, as a part of their trading name company name.”
Mumbai-based Excel Telesonic was founded in 2010. It is a telecom service company that provides fibre network services for telecom operators in South Mumbai. The company counts Airtel and Idea as clients.
In the suit, Cloudtail mentioned that its brand is a ‘well-known mark,’ and the use of Cloudtele by Excel Telesonic amounted to an infringement of its registered trademark. The company also asked for either “destruction“ of the domain name ‘http:www.cloudtele.com’ or for a transfer to the ecommerce seller.
Last month, at the last hearing, lawyers for Cloudtele said that the company will stop using the name ‘Cloudtele’ within the next four months. They also said that the company would only retain the word ‘cloud’ but will either prefix or suffix it with any other word and not ‘tail’ or ‘tele.’
In another instance of trademark infringement, US-based Paypal legally opposed Paytm for registering a ‘deceptively similar’ trademark. The filing for trademark opposition states that “the impugned trade mark is deceptively and confusingly similar to the opponent’s earlier trade mark inasmuch as the applicant has slavishly adopted the two-tone blue colour scheme of the opponent in its entirety.” In March 2017, a designer in Bengaluru claimed image copyright infringement of a line art image of Vidhana Soudha by cab aggregator Ola for a citywide billboard campaign promoting Ola Auto.
Cloudtail India Pvt. Ltd is a joint venture between Amazon Asia and Infosys founder NR Narayana Murthy’s private investment fund Catamaran Ventures.