27 Dec 2022: UPSC Exam Comprehensive News Analysis

C. GS 3 Related

Category: ECONOMY

1. What is the Delhi HC verdict on ‘Rooh Afza’ trademark?

Syllabus: Indian Economy and issues growth, development and intellectual property rights

Prelims: About trademarks and intellectual property rights

Mains: Significance of the protection of trademarks and other intellectual property rights

Context

The Delhi High Court’s observation in the Hamdard National Foundation (India) v/s Sadar Laboratories Pvt. Ltd. case.

Details

• The makers of “Rooh Afza” had filed an appeal against the rejection of its application seeking an interim order against Sadar Laboratories Pvt. Ltd. for their product “Dil Afza”. 
• The maker of “Rooh Afza” had said to the court that the trademark “Rooh Afza” is a reputed mark in the market with respect to sharbat (which is a sweet beverage) and had claimed that the product “Dil Afza” of the Sadar Laboratories was designed deceptively and similar to the trade dress of “Rooh Afza”.
• The High Court of Delhi in its observation has asked Sadar Laboratories to restrain from manufacturing and selling beverages under the trademark of “Dil Afza”. 

Trademark

• A trademark is a unique sign/indicator used by an entity to distinguish its goods or products or services from those of other business entities. 
• A trademark acts as a badge of origin which helps identify a particular business entity as the source of that particular good or product or service. 
• Trademark infringement refers to the unauthorised usage of a sign/indicator that is identical or deceptively similar to a registered trademark.
• In India, the Trademark Act of 1999 deals with the protection, registration and prevention of fraudulent use of trademarks. 
• Trademarks in India are governed by the Controller General of Patents, Designs and Trademarks which works under the Department for Promotion of Industry and Internal Trade (DPIIT).

Delhi Court’s observations

• A Division Bench of the High Court asked Sadar Laboratories Pvt. Ltd. to stop manufacturing and selling any product under the trademark “Dil Afza” until the final disposal of the trademark infringement suit. 
• The High Court further added that the trademark “Rooh Afza” had become a strong mark and had acquired immense goodwill which needed a higher degree of protection.
• Earlier, in M/s Kirorimal Kashiram Marketing & Agencies Pvt. Ltd. v/s M/s Shree Sita Chawal Udyog Mil case, the Delhi High Court had held that it is not permissible to copy a prominent part of the registered trademark of another person and had ordered the respondent, in that case, to restrain from using the trademark “Golden Deer” as it was deceptively similar to a registered trademark “Double Deer” with respect to rice.

What is a strong trademark?

• A trademark is considered to be strong when it is very well-known and has received a greater degree of goodwill. 
• The degree of the protection of any trademark changes with the strength of the mark i.e. stronger the mark, the higher will be the requirement to protect it. 
• For example: “Rooh Afza” has acquired more protection as it is more likely to be subjected to piracy as various other individuals/entities look to take undue advantage of its goodwill.

Rationale behind the Court’s Observations

• The disputed trademark “Dil Afza” has a phonetic similarity with “Rooh Afza”. 
• If a recall from memory is triggered by the English meaning of the terms “ROOH” meaning soul and “DIL” meaning heart, it provides a common conceptual background for both products. 
• Further, the trade dress of the disputed trademark, which consists of the bottle’s shape, the placement of the house mark, the design, and the colour of the design are all material contributors to the commercial impression of the competing trademark. 
• The value of the product was also taken into consideration as the court held that as the product is a low-priced consumable item general customers would not deliberate on the details of the product as compared to their tendencies while making a high-value investment choice.

Read more about – Intellectual Property Rights

Nut graf: The Delhi High Court’s decision and views with respect to trademarks in its recent observations have gained significance as the protection of trademarks plays a key role in the protection of the interests of both the business entities as well as consumers.

E. Editorials

Category: POLITY AND GOVERNANCE

1. A dismissed review petition, an egregious error

Syllabus: GS-2, Judiciary and important cases.

Mains: Review petition and associated concerns.

Prelims: Remission and Review petition.

Context: The Supreme Court dismissed the review petition of Bilkis Bano on 13 December 2022.

Background Details:

• Bilkis Bano, the sole survivor of a horrific gang rape and mass murder in 2002 filed a review petition against the Supreme Court (SC) order of May 2022.
  • In the May 2022 order, SC directed the Gujarat Government to consider the early release of one of those convicted of the crime, in response to his writ petition.
  • It should be noted that the sentence to life imprisonment of the convict and co-convicts were pronounced by a Division Bench of the Bombay High Court on May 5, 2017. The judgment was further confirmed by the SC on July 10, 2017. 
  • It directed the state government to consider the prisoner’s application for remission and premature release in accordance with a now-defunct policy dated July 9, 1992.
  • The Gujarat government granted remission and early release not only to the convict but also to all his fellow life convicts. They were released on Independence Day and felicitated with garlands and the distribution of sweets.
• The victim requested an open court hearing in accordance with Order 47, Rule 3 of the Supreme Court Rules. 
• However, in a two-page order issued in the chambers on December 13, 2022, SC dismissed the petition.

Associated Concerns:

• According to the author, the order fails to notice or engage with several of the review petitioner’s contentions. Moreover, the only submission of the review petitioner which was noted, namely that four binding judgments (comprising one by a Constitution Bench) had not been followed by the Court and was ignored with the statement that “none of the judgments are of any assistance to the review petitioner”.
• Aspects which were overlooked:
  • Writ petitions under Article 32 of the Constitution are not maintainable against judicial orders, particularly High Court (HC) orders as it is a constitutional court. It should be remembered that the Gujarat HC rejected the writ petition of the convict on July 17, 2019.
  • After the rejection of the petition by HC, the convict moved an amendment application to contend that the appropriate government to consider remission was the central government. High Court rejected this as well through its order dated March 13, 2020.
  • The convict further sought permission to move the Bombay HC and it was granted.
  • The convicted prisoner had suppressed all relevant facts and materials in his writ petition before the top court.
  • The foundation of the SC’s judgment of May 13, 2022, was its finding that the State of Gujarat was the appropriate government instead of Maharashtra, which finding is rendered without considering the plain words of sub-sections (1) and (7) of Section 432 of the Code of Criminal Procedure (CrPC).
  • It is argued that a two-judge Bench of the apex court could not have adopted a contrary interpretation without referring the issue to a larger Bench.
  • Additionally, SC had relied heavily on a Bombay High Court order of August 5, 2013, which did not hold what the Court ascribed to it in paragraphs 5 and 12 of the judgment under review.
• One of the major concerns associated with the case is that the rejection of a compelling review petition not only does injustice to the victim but also questions the prestige of the Supreme Court.

Other examples:

• It is contended that SC ignored a binding nine-judge Constitution Bench decision in Naresh Shridhar Mirajkar (1966) and another five-judge Constitution Bench in Triveniben (1989), which held that a judgment of a court can never be challenged in a writ petition under Article 32. 
• Moreover, the apex court also overlooked another Constitution Bench decision in Union of India vs V. Sriharan (2015) which held that if an offence is committed in State A, but the trial takes place and a sentence is passed in State B, it is the government of the latter which should be considered the appropriate government.
• In Madhya Pradesh vs Ratan Singh (1976) it was decided to make “an authoritative decision on the important principle involved in the case”, and held that “it is the State where the accused was convicted which alone has the power to grant remissions of the sentence”. 
  • It was further held that “there can be no shadow of a doubt that the appropriate Government mentioned in sub-section (1) and sub-section (2) of Section 401 of the CrPC refers to the Government of the State where the accused was convicted”. 
  • It was ultimately held in that judgment that Section 432(7) of the new CrPC, 1973 has clarified the matter beyond controversy. 
• This judgment has been reiterated multiple times in the years 1976, 1982, 2004, and twice in 2016 (one by a Constitution Bench).

Also read: UPSC Exam CNA Aug 20th, 2022: The injustice of exceptionalism

Nut Graf: It is argued by many that the review petition of the Bilkis Bano case was rejected by the Supreme Court by overlooking certain crucial aspects of the case. The court should address the concern associated with the case to ensure justice for the victim.

I. UPSC Mains Practice Questions

1. The provision regarding review is an exception to the legal principle of stare decisis. Analyse. (10 Marks, 150 Words) [GS-2, Polity]
2. Pushpa Kamal Dahal “Prachanda” taking oath as Nepal’s new Prime Minister is not encouraging for India-Nepal relations. Examine. (10 Marks, 150 Words) [GS-2, IR]

Read the previous CNA here.