September 2021

TRADEMARK OPPOSITION 103

PART 3

Evidence series in trademark opposition

In an opposition within a period of 2 months of counterstatement, the opponent should rig out evidences as per his desire to support his opposition in form of an affidavit under Rule 45 to strengthen his side of the case. If the opponent fails to file the evidence, the opposition may deem to be withdrawn or abandoned. The disclosure of information may also lead to settlements and negotiation between the parties. Copies of this evidence will be submitted before the Registrar along with a copy of applicant

Rule 46 [2]

Later on, after 2 months of receiving the affidavit and evidence the applicant shall here furnish the evidence which supports his application in form of affidavit Under Rule 46, [3]copies of this evidence along with the exhibits and should be submitted to the registrar and one copy should be forwarded to the opponent. Applicant here can solely rely on the facts as per stated in the counterstatement and choose to waive of this step. If the opponent does not file evidence, the opposition may be deemed to be withdrawn. If the applicant fails to submit evidence in support of application or a waiver letter within the prescribed time of 2 months the Trademark application shall be abandoned

Rule 47

Further the opponent will again be given an opportunity to provide evidence in support to their opposition within one month form the receipt of the evidence from the applicant which is called as Evidence in reply by opponent Under Rule 47, in such case if the document is in language other than Hindi or English it should be translated in Hindi or English and submitted to the Registrar and copy should be provide to the opposite party [4]

RASHI OSWAL

B.A. L.L.B 4th Year

DES NAVALMAL FIRODIA LAW COLLEGE, Pune

[1] https://selvams.com/kb/in/trademarks/filing-evidence-support-opposition/

[2] https://selvams.com/kb/in/trademarks/filing-reply-evidence-support-opposition/

[4] https://companiesinn.com/manage-business/trademark-opposition

No competition no progress..! Is it???

In business, competition is never as healthy as total domination. It brings out the best in the products but worst in the competitors, to maintaining the balance is crucial for an equitable economic environment. Competition refers to a situation in a marketplace in which entities or sellers independently strive for the patronage of buyers in order to achieve their respective business objectives. We have been talking for ages about what is competition but never emphasized what is not competition in a marketplace. We have seen the dynamics of competition and economy how the competition plays a catalytic role in unlocking the potential of any economy.

With growing complexities of industrial structure and the greed for scaling heights for achieving maximum share in the market is inducing malpractices such as abuse of dominant position, bid rigging, unfair trade practices, and formation of cartels.

Abuse of dominance

The position of strength and power enjoyed by an organization in the market independently without competitive forces opposing, it basically exploits the consumers imposing them with imposing conditions in purchase or sale of goods/services, predatory pricing, limiting production or technical development, and creating barriers to entry.
Example – Predatory pricing is where the cost of goods/services is kept below the actual cost just to eliminate the competitors.
Telecom industry – Reliance Jio vs Bharti Airtel vs Vodafone Idea

Bid rigging and cartel

Bidding as a practice is to secure goods/services on the most favorable prices and conditions to manipulate the market resulting in an anti-competitive bid called corruption in auctions. When competitors agree in advance as to who will bid for the contract more specifically to predetermine the winning bidder, agreements not to bid against each other and agreements to squeeze out outside bidders. It is a form of fraud and eventually harms the economy and public in long run. Mostly occurs in tenders or government tenders for the supply of tools or food rations etc
Example – Use of multiple directorships in companies to submit the bids for the same products resulting in cover bidding.

Cartel
Business cartels occur when competitors get together and agree not to compete against each other by fixing prices, dividing and sharing the market controlling the production and distribution of goods and services. The nature of a cartel is to raise prices above competitive levels resulting in harming the ultimate consumer as he is left with no choice.
Example – Cement industry.

Conclusion

Competition should not always be coupled with the rivalry between market players to attract customers rather adopt fair means to combat competition for better outcomes in the market.
The pessimistic approach towards competition needs to be altered but that does not mean it shouldn’t have strict norms and regulations governing. It should not create division & animosity in the society rather should thrive for balance on economic grounds.

KASTURI MORE

LLB 1st Year

YASHWANTRAO CHAVAN LAW COLLEGE, PUNE

TRADEMARK OPPOSITION 102

PART 2

A counter statement is basically a reply to the notice of opposition, it must be filed by the applicant within two months of receipt of the notice of opposition by way of

Form TM-O along with the prescribe fee , the fee shall be with respect to each class to which the counter is being filed. A copy of the counter statement is provided to the to the opponent which acts as a support to the evidence of case by way of affidavit, then the applicant leads evidence.[1]

BASICS OF PREPARING A COUNTER STATEMENT

Applicant should read the opposition notice carefully.
A paragraph wise counter of each ground should be made in the opposition notice.
Every allegation in the Notice of Opposition shall be replied and opposed accordingly.
Every statement in support of the Application shall be presented with a proper and valid testament.
The counter statement should be verified by the opponent or by his authorized agent who verifies of his own knowledge he verifies the information received and believed it to be true.
The verification must be signed by the person making it and should state the date on which and the place at which it was signed.
Counter Statement should include all the facts as to how the applicant’s mark is different than that of the Opposition.[2]

Under any circumstances if the applicant fails to file the counter statement with two months of service of the opposition, trademark is considered to have abandoned for non-prosecution. On the other side if the applicant files the counter statement, the opposition will proceed to the evidence stage.

RASHI OSWAL

B.A. L.L.B 3rd Year

DES NAVALMAL FIRODIA LAW COLLEGE, Pune

[1] https://selvams.com/kb/in/trademarks/filing-counter-statement/

[2] https://taxguru.in/corporate-law/counter-reply-opposition-trademark-application.html

TRADEMARK OPPOSITION 101

Opposition of Trademark[1]

A trademark opposition is basically filed by third party against registration of trademark. It offers third party the opportunity to object against the registration within the time given by law. After the examiner reviews your trademark and finds that it qualifies for registration, your trademark will be published in the Trademarks Journal. In India an opposition must be filed within 4 months of the advertisement in journal of the trademark. When an opponent files an opposition, trademark status will appear as ‘Opposed’.

Section 21 of the trademark states that any person can file a trademark let them be a company partnership or a person, the person filing the opposition need not have any commercial interest in the matter or a prior registered trademark in the Registry.

-When can one file an opposition? [2]

1-Absolute grounds of Refusal as provided under sec 9(a) in Trademark Act 1999

makes it clear that any mark devoid of any distinctiveness that is to say not capable of distinguishing the goods and services of one person from those of another person can lead to opposition of that Trademark Thus, if any third party finds that the mark is non distinctive or similar to some other Trademark they can file an opposition against it.

2-Relative’s ground of Refusal According to Sec 11(2) of Trademark Act 1999 states that if the applicant’s trademark is being phonetically or visually similar, conceptually confusing and deceptively similar to some other existing trademark opposition can be filed for the same

3- Section 11(3) seeks that a trademark should not be registered whose use in India is liable to be prevented by virtue of the law of passing off protecting an unregistered trademark used in the course of trade or by the virtue of law of copyright, for application of this section it is necessary that the Opponent satisfies the trinity of “passing off” .This section also provides ground for violation of copyright

4-Section 11(10) provides that while considering an application for trademark and opposition filed, the registrar should protect the well-known mark against the identical or similar trademark

Conclusion –

Grounds of the opposition of a trademark might vary sometimes depending on the facts of the case there can be multiple reasons like passing off, geographical location etc as above stated are reasons of when can a party file an opposition.

RASHI OSWAL

B.A. L.L.B 3rd Year

DES NAVALMAL FIRODIA LAW COLLEGE, Pune

[1] https://legislative.gov.in/sites/default/files/A1999-47_0.pdf

[2] https://www.mondaq.com/india/trademark/521200/trademark-opposition-in-india

BREACH OF RIGHT TO PRIVACY BY PEGASUS SPYWARE

What is Pegasus

Pegasus is a hacking software which has been developed and licensed to be used by a company of Israeli namely NSO Group. It has a capacity of infection millions of mobile phone including IOS and Android phone systems. Once this software enters into anyone’s phone, the phone becomes a surveillance device. The software can copy all the messages from your phone (sent or received) record calls including WhatsApp calls and also harvest photos and videos.[1]

Recently in 2019, the software exploited more than 1,400 phones with the help of software. It was also found that the software can also enter an iPhone by Apple’s iMessaging feature, However apples says that to protect your phone for this Pegasus one should keep updating their phone.

India Scenario

In India, there have been many cases wherein, Pegasus spyware was found in the mobiles phone which was considered as a violation of article 21 of those people. Around 40 journalist’s name was found in the hacking list of an unidentified agency using this spyware.[2] The data published over shoes that many journalists were prey to the software between the year 2018-19. Not only journalists, mobile numbers of 300 Indians including two union ministers, human right defenders, lawyers, thee leaders of the opposition party and scores of two business men was targeted for hacking with the help of the software.

Right to privacy

India is a democratic country, and incidents like Pegasus spyware snooping is violative of the fundamental rights of the citizens. Right to privacy is not an explicit rights mentioned in the Constitution, however after the judgment given in the famous case of K.S. Puttaswamy v. Union of India[3] “the right to privacy was interpreted as the right of an individual to exercise control over his personal data and to be able to control one’s existence on internet.” Therefore, the right to privacy comes under the ambit of right to life under Article 21. As the spyware Pegasus invade the privacy of an individual it is said to be a violation of Article 21 of the Constitution which is a fundamental right. In the surveillance issue, the absence of privacy impinges on the ideals of liberty and dignity as envisioned in the Constitution of India and hinders the growth of the individual as a citizen of this country.[4] Such a breach is a threat to the sovereignty of the nation and also the ideals of democracy the nation is based on.

Conclusion

The right to privacy is an intrinsic fundamental right available to each individual. Pegasus spyware not only violates the rights of individuals but it could also be use the private information of people. Data protection and privacy being internationally accepted concepts, should be protected from such software. International courts and judicial systems should ban the software or should take necessary steps to stop this violation or right to privacy and disclosure of information of individuals to the public.

Avantika Singh
3rd Year, BBA LLB (Hons.)
Symbiosis Law School, Pune

[1] What is Pegasus spyware and how does it hack phones by David Pegg and Sam Culter.

[2] Pegasus spyware controversy: The story so far, The free press Journal.

[3] K.S, Puttaswamy v. Union of & Ors., AIR 2017 SC 4161.

[4] Pegasus affair is an assault on privacy by Priyanka Chaturvedi.