Monday, October 29, 2012

Dasvidaniya-Movie Review-A Short Message to Sadistic Tired Heartless Souls

'Dasvidaniya - The Best Goodbye Ever’ is a movie which was released in the year 2009 and is quite an off-beat one as compared to the trend of movies produced these days. It tells us about the preciousness of our valuable lives and how much beautiful it is. Moreover, it puts forward the message that we should not wait for a day devoid of tension and worries. Instead, we should try and enjoy each and every moment and live our lives to the fullest. The movie deals with the life of a middle-class bachelor aged around 37, caught up in the busy schedule of his office and household works on one hand and taking care of his old mother at home on the other hand. He is never able to take out time for himself and things turn more worse when he is suddenly diagnosed with stomach cancer. In the three months he is left with, he leaves no stones unturned to fulfill his ten wishes-the ten which he wants most dearly in his life. The list also includes bringing his brother back home, who had left long ago after having a dispute with the mother, so that there is someone to take care of her after him.Lastly, the movie teaches us the lesson that we should always focus on the positive aspects of our life. We should appreciate it for what is good in it rather than criticizing it for the hardships and difficulties it has given us. Life is too short and we should never wait for another day, rather put up our best foot forward to overcome these difficulties. This would enhance our personality and make us a better human being. Life is like a bubble and we should enjoy it before it bursts.

Tuesday, October 23, 2012

Passing Off - A Marketing & Legal Perspective - An eyeopener for the Layman

In a layman’s term, passing off means to pass off or sell your goods as someone else’s.For example, you sell a black coloured fizzy drink with the name Roca Cola in the name of Coca Cola, though it may not be anywhere close to it. In this case the unaware buyer, believing it to be Coca Cola, will purchase the beverage, which he would not have done normally. This is just a very small example giving an insight as to what this post is all about. Coca Cola is indeed not such a brand where consumers are going to make silly mistakes like these. But every single brand of the world is not a Coca Cola. A consumer howsoever vigilant or knowledgeable, would in some or the other manner become a victim of passing off. 

Passing Off is the situation where an existing trader has a reputable and popular product or service.Then, some other trader in the hope of taking advantage of the goodwill that has been established in that product or service confuses customers into purchasing his goods instead of the first trader. Ultimately, the first trader suffers loss of sales as consumer buy goods from the trader who is “passing off” his goods and making consumers to believe them to be the same or of the same quality as those of the genuine trader. All this leads to added damage. Consumers start assuming that the so called substandard goods are coming from the first trader causing loss of sales coupled with loss of reputation for the genuine one. Thus, passing off means a trader giving consumers the impression, that his goods are those of another trader who has an established goodwill[i]. The law against passing off protects commercial dishonesty[ii]. Some very common examples of this phenomenon have already been depicted pictorially. It is indeed a burning issue in today’s world of marketing leading to endless litigation and arbitration worth rupees more than a million.

Passing off has nowhere been statutorily defined but it has been referred to in Section 27(2), 135 and 134(1) of the Indian Trademark Act, 1999. The first two deal with the rights and remedies of a person in case of passing off. In Cadila Health Care Ltd v Cadila Pharmaceutical Limited[iii], the Supreme Court laid down certain tests for ascertaining the case of passing off. They include determining degree of resemblance of the two marks, nature of the goods in question, similarity in character and performance of the goods, class of purchasers, mode of purchasing and placing orders and any other relevant surrounding circumstances.The essential characteristics of a passing off action were laid down in the case of Erven Warnink BV v Townend & Sons (Hull) Ltd[iv] and specially included misrepresentation made, in course of trade, to prospective customers, to injure the business goodwill of another, leading to actual damage.

Recent Relevant Cases
Honda Motors Co. Ltd v Mr Charanjit Singh and Ors[v]
The defendant was selling pressure cookers with the same name ‘Honda’. The plaintiff had been selling motor goods and electric appliances with the same name for a long time. The court held that it was very easy to associate the names and confuse the customers. An injunction was ordered to stop the use of name by defendant.

Godfrey Philips India Ltd v Dharampal Satyapal Ltd & Another[vi]
Both the parties were pan masala manufacturers. Plaintiff’s slogan was ‘Shauq Badi Cheez Hai’ (The new paan masala advert featuring Manoj Bajpai) and defendant used the slogan ‘Swaad Badi Cheez Hain’. Both the slogans are deceptively similar. But the court said that apart from a few words in slogan the actual advertisement did not resemble each other. The plaintiff preferred to appeal which is still pending in the Court.

Dhariwal Industries Ltd. and Anr. v M.S.S. Food Products[vii]
The appellants were using the brand name ‘Malikchand’ for their product and the respondents were using ‘Manikchand’. The Court held that even though the appellant has not registered his trademark but since they were using it for long time, the court granted perpetual injunction against the respondents.
The most recent news with the concerned issue is a petition filed by Dabur against Amar Remedies for passing off Dabur’s toothpaste named ‘sewak’ as ‘meswak’.[viii]

Lastly, in August 2012, a Delhi-based Intellectual Property firm, “Singh & Singh, Advocates” filed a Civil Suit before the High Court of Delhi against another law firm called “Singh & Associates” alleging that Singh & Associates has been using a name, which is deceptively similar to the mark and name of Singh & Singh, Advocates to capitalise on the goodwill generated by the former. The matter is still pending for a hearing for any final decision to be made.

Life is a race, not a morning walk. The same quote very much applies to the huge multi-millionaire world of marketing and advertising also. There is colossal level of cut throat competition and almost every seller is ready to fall down to the lowest levels of honesty, integrity and professional ethics to somehow make his product sell and earn profits. Passing off, as we have noticed above is one of the many ways to achieve the same but unlawfully.All this indeed calls for the need for enactment of a proper statute recognizing wrongs and remedies related to all actions of passing off. In India, reasonable and not strict restrictions and rules need to be imposed on the way sellers present and market their product as there is close competition because of huge population and no one would leave the market unutilised. It is suggested that special courts/tribunals (just like Consumer Courts) be set up to decide cases related to such matters as there is already a huge burden of various other high priority cases on our judiciary.More than half of our population, especially in rural India is uneducated and illiterate and would hardly understand the detrimental effects of such second grade products. This needs Government intervention by formation of Special Task Team comprising of small flying squads. They would make surprise and spontaneous visits to markets keeping a check and reporting the areas/sellers engaged in the activity of passing off etc., so that suitable and necessary action can be taken. All these things when implemented collectively would finally help in curbing the menace of Passing Off.

P.S.: The author would like to give due acknowledgement for the critical and significant contribution made by Ms. Shaifali Singh for making this post possible.

[i] Linda Fazzani, Simon Clark & Tina Hart, Intellectual Property Law, 4th Edition, 2008, Palgrave Macmillan
[ii] Dr S R Myneni, Law of Intellectual Property, 4th Edition, 2007, Asia Law House
[iii] (2001) 5 SCC 73
[iv] (1980) RPC 31
[v] 2003 (26) PTC 1 (Del)
[vi] I.A. No. 6010/2012 in Civil Suit 865/2012 Decided On: 02.07.2012
[vii]AIR 2005 SC 1999

Sunday, May 13, 2012

Damini - Movie Review and a Lawyer's take

Delayed Justice

Mahatama Gandhi, the father of our nation had once said, “There is a higher court than courts of justice and that is the court of conscience. It supercedes all other courts.”

It is on these very lines that the movie Damini is based. It gives us a wonderful opportunity to relate law and films with burning issues like delayed justice, our present society and women

Damini was a multi starrer film where Rishi Kapoor, Amrish Puri and Sunny Deol did justice to their respective roles. And above all it was Meenakshi Sheshadre who played the lead protagonist in this movie and impressed one and all.

Damini, in English language means lightning. Lightning by its might can act as a device of death and can destroy and destruct anything and everything but on the other hand when accompanied by rain it brings happiness and prosperity to one and all. We can very well conclude that the title of the movie is quite significant and apt keeping in mind the story and the issues raised.

Damini, in this movie is a young matured girl and hails from a very poor background. But her conscience is governed is by higher moral and objective principles of justice, truth and equality for one and all in the society. She is quite unhappy about the fact that people never stick to these universally accepted norms which have been considered good and justified since ages. They just see their personal interest and nothing else. She is married to a very rich person named Shekhar Gupta who always has all praises for her unlike his rest of the family. He admires her allot just because of these very special qualities which can rarely be found in any person in today’s materialistic world.

The real problem arises when their domestic help Urmi is gang raped by her brother-in-law and three of his friends. The Gupta family including her husband tries their best to convince her not to bring this issue into limelight as it would hamper their name and fame. They secretly try to dispose of the matter by luring the victim’s relative with money and even try to get her killed. This is where the issue of corruption among public officials and authorities comes up in the movie. The victim is finally killed and Damini’s conscience does not allow her to remain silent as she cannot bear the death of an innocent young lady who had been serving them since years together.

She eventually loses the support of her family and the husband is kept aloof from all this. In the court of justice she is posed with all kind of hideous questions and situations by the lawyer. He makes things extremely difficult for her by asking all sorts of questions related to a woman’s privacy and no objection is raised. She is falsely proved to be mentally retarded and sent to a mental hospital. There, she is subjected to all kinds of mental and physical tortures and sufferings in spite of her being perfect.

Through all such incidences the movie very well highlights the issue of women oppression and feminism by the society, specially the rich for their self interest.Now, somehow she manages to escape and finally reaches Govind who is also a lawyer. It is here that the role of the legal personality who has been taken into contention starts.

Govind was initially a lawyer but in the present circumstances remains secluded and separated from the society and public life. His wife was killed by a drunk driver in a road accident and since then his attitude towards life has really been disheartening. He lost all his courage after that and gave up the legal profession. Currently, he always remains lost in her memory and is mostly drunk every time. The basic reason for all this is that justice was never administered to him while fighting for his wife’s cause. It was because of the delay in decision making by the courts and the case was never decided. Since then he has lost all faith in the justice delivery system of the country and is very distressed.

But the plight of Damini and the motivation given to him by her inspires him to get back into his original role and fight for her cause. And this time he his firmly determined to see that justice is rendered to Damini.

There are various attributes of his which were really very impressive and gave him a edge over his opponent. These finally helped him to win an almost completely lost case. They are:

He was mentally very active and acted in a clever way unlike his opponent, i.e. to say he remained stuck to the basics and brought in limelight that how the other party contradicted their own arguments which had been put up by them earlier. In one hearing they contended the proposition that Damini is mentally retarded and in the other they proposed that she was very intelligent. He showed full presence of mind while questioning all the key witnesses. By just mere play of words, he made sure that all of them utter the real truth which he knew was present in some hidden corners of their mind. And without making much of an effort he was quite successful in doing so. He left them without any chance to manipulate the reality.

According to the need of the hour, he was cool, calm and composed on one hand and aggressive, self-expressive, assertive and argumentative on the other. All the latter ones are very well illustrated by the well known “taareekh pe tareekh” dialogue and various other scenes. He was loyal and trustworthy unlike his opponent who was shrewd and cunning and adopted any and every unfair means to see that he won the case.He was physically very strong to deal with all kinds of out of court dangers and attacks and gave back a befitting reply. Although, this attribute is not that important for a lawyer to possess as it is not the demand of the profession and it is not everyone’s cup of tea to have it, especially women. But then in today’s world people resort to all sorts of unfair physical means and try to resolve cases out of court. Therefore, this attribute of the fictional lawyer here keeping in mind the plot of the movie is very much appreciable.

Although, there exist two legal personalities in this movie but the above mentioned factors of Govind give him an upper edge over Indrajit Chaddha. Moreover, Chaddha leaves no stone unturned to manipulate the facts of the case and is even able to convince the judge also. He acts in an unethical way unlike Govind and this is where all the difference arises. Govind follows ethics all throughout and finds everything very difficult in the beginning. But then it is because of all this only that he gets the case decided in his and Damini’s favor. This can very well be termed as the basic reason for the preference of Govind over Chaddha between the fictional lawyer who impressed me through this film.

Legal issues raised
Apart from issues like feminism, oppression of the poor by the rich, delay in justice delivery, corruption etc. the prime legal issue about which we are concerned here is rape.

As per Sec 375 of the Indian Penal Code, 1860, a man is said to commit an offence of rape with a woman under any of the following conditions:
• Sexual intercourse against the victim’s will
• Without the victims consent
• With her consent, when her consent has been obtained by putting her or any person that she may be interested in fear of death or hurt
• With her consent, when the man knows that he is not her husband
• With her consent, when at the time of giving such consent she was intoxicated, or is suffering from unsoundness of mind and does not understand the nature and consequences of that to which she gives consent
• With or without her consent when she is under sixteen years of age

The rape committed in the movie is the one where there has sexual intercourse against the victim’s will. It is violative of Article 21 of the constitution which talks about Right to life & liberty. Related Case is, Dhananjoy Chatterjee v. State of West Bengal [2004] 9 SC 751 where a security guard had raped and murdered a 14 year old girl at her residence.

Section 375 therefore requires:
• Sexual intercourse by a man with a woman;
• The sexual intercourse must be under any of the six circumstances given in the section.

Criminal Law Amendment Act, 1983:
The Criminal Law Amendment Act has substantially changed Sections 375 and 376 of the IPC. Several new sections have been introduced therein- viz. Sections 376(A), 376(B), 376(C), 376(D) of the IPC.

Section 376(A) punishes sexual intercourse with wife without her consent by a judicially separated husband.
Section 376(B) punishes for sexual intercourse by a public servant with a woman in custody.
Section 376(C) punishes sexual intercourse by superintendent of jail, remand house, etc. whereas,
Section 376(D) punishes sexual intercourse by any member of the management or staff of a hospital with any woman in that hospital.

These new sections have been introduced with a view to stop sexual abuse of women in custody, care and control by various persons- which though not amounting to rape were nevertheless considered highly reprehensible.

The movie very well highlights the fact that how our society is unconcerned towards the poor and needy. In times of deaths, they try to compensate the life of a person in terms of money. Even public officials designated to serve the society become corrupt. Justice delivery system of our country is very inefficient and needs a revolutionary change for quick decision making.

A Memorable Account of My Childhood Days

The Tiger & The Sweets

Today, I may be a law student but somewhere down the line, during late 2000, I was also a kid. A kid with no legal sense and no understanding of law, all I had was an ordinary sense, little and raw. So, here I take this opportunity of putting on paper that rarest of rare incidences of my life. An incident which taught me lessons forever, made me stronger than ever and has left an indelible mark both on my memory and personality. It was the time of late December in 2002. The whole year had been altogether really cherishing and it was time to make it ever memorable before bidding adieu to it. 

After successfully finishing with the half yearly exams of sixth standard, me and my family planned an excursion to the Ranthambore National Park at Sawaimadhopur, Rajasthan. The major objective was to see a tiger and also to appreciate the natural scenic beauty of the lush green forests for the first time in our lives. We hired a personal gypsy for this purpose and a professional guide accompanied us. The greenery of the jungle and scary sounds of so many animals and birds welcomed us to the National Park. Large number of deer and antelopes at every three-four kilometers or so was a usual thing. Their various activities added to the charm and beauty of the entire trip. But the ultimate desire and anxiety to see a tiger was increasing with the passage of time. With every passing moment, the closing time was approaching nearer and the hope of sighting a tiger was slowly and gradually dying. 

Although, our driver and guide were quite determined for it and left no stones unturned, but still things did not work. They even drove the gypsy towards the restricted and dangerous part for the same but that did not make any difference. They showed extreme courage and took the risk of taking the vehicle on the pathway which had some thirty feet tall, wild and pale yellow grass on both its sides. There was fear in the mind on one hand and excitement on the other as the sighting of a tiger was for sure. At that very moment, I had an intuition that it was not the sighting of the tiger but something unexpected was to happen. 

Indeed, it did and to our utter disappointment the gypsy broke down then and there. Moreover, we had already crossed the said time limit and within no time the entire forest turned dark. It was accompanied by an unusual silence and an atmosphere of gloominess. The driver was trying his best to bring the ignition back in working condition. The hearts and minds of all six of us were terribly horrified to the deepest extent possible. Everyone was trying his/her level best not to bring it on their faces to make each other comfortable.

But something altogether different was going on in the mind of my little sister which is certainly worth mentioning. Although small in age then, she very well anticipated the fact that a tiger could be around at any moment. She opened her packet of sweets and biscuits and was quite prepared to offer it as and when the tiger arrived just as we use to do to Tommy at home. Well, that sweet little girl who is now a matured grown up brought broad smiles on our faces and relieved us from tension. The wireless connectivity also failed t and we were badly stuck up in a situation which would lead to something of which only God knew. Like most Indian ladies, my mother was also very religious and spiritual, not to forget emotional too. She started taking the names of all Gods she could remember of and the moment she would break down in tears was not far away. My father had already given a hint of it earlier only. We both shared the greatest sense of understanding of emotions and he winkled at me just to prove his point. 

All this was taking place in the midst of where we were caught between life and death. To add to the plight, that guide started narrating stories of previous incidences like these and how every time he had emerged as a hero by saving various lives at such times. On asking that what kind of heroics he would be showing then, his reply has been pricking my mind since then. He went on to say that he would make use of his special tactics only when everything failed. I do not know about anyone else but at that very moment the tiger inside me got instigated and I just felt like eating him away. It was between all these funny and tense moments that my father maintained his calm and composure. He was trying his best to provide assistance to the driver in whatever manner he could. He understood that the need of the hour was to act with intellect rather than with the unconditional flow of emotions. This is one of the many reasons I admire him for and worship him as my hero.

God has been in control of our lives since the day we were born and shall always remain forever. There are various instances when He rewards us and also when he tests us. I think that day belonged to the latter as it was a test of nerves and our patience, our courage and above all our belief in our own selves. I feel he got a mixed response from us specially my sister and my father but was convinced enough to finally reward us with something. Fortunately, it was not the tiger coming out of the wild grass to swallow us as its dinner. But just as every sunrise brings a new ray of hope, rays from the torches of the forest rangers far away brought back life in us. They keep a count of the vehicles to ensure that the same number of vehicles exit which had entered in the beginning. Rules are strictly followed there and we still regret the fact that we broke rules which even the President of the US had followed during his visit there earlier that year. We thanked the Almighty from the bottom our hearts as the rangers were no less than messengers sent by God Himself.

On the way back, my sister was utterly disappointed that she could not offer even a single sweet to the tiger. Well, that was the only thing left for us to munch upon and the sweets tasted sweeter than ever.

Eight long years have passed but the memories of the last month of the year 2002 are still fresh in my mind. I must say that our quest to make it a memorable one before entering the New Year was certainly fulfilled. Since then, I have matured a lot and very well understood the lesson that hardships and happiness are just the two sides of the same coin known as life. Both exist simultaneously and the absence of any of them reduces the value of the other.

P.S.: Heartfelt gratitude and a token of appreciation to a dear friend who clicked these wonderful pictures on a recent visit to this place. The author can be reached here.