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INSURANCE

It’s a contract where one party (Insurer) undertakes in return of an agreed consideration (premium) to pay the other party (Insured) a sum of money or its equivalent in the happening of a specified event which event invariably happens in the future.

The insurance contract is a contract like any other, but with particular peculiar principles. The insurable interest should be beyond the control of either party and there must be an element of negligence or that there is uncertainty. Contracts dealing with uncertain future events are either alieatory, contingent or speculative. In insurance, risk exists in priori, whether or not we insure. However, in a wager/stake/ gamble there is no insurable interest.

It has been observed that the contract of insurance is basically governed by rules which form part of the general law of contract. But equally, there is no doubt that over the years, it has attracted many principles of its own to such an extent that it is perfectly proper to speak of the Law of Insurance. It is a contract based on a promise sometimes it is said to be speculative but it is based on an element of uncertainty as to whether the event insured against will or will not take place.

In Prudential Assurance ltd –vs- Inland Revenue Commissioner (1902) 2 KB 286, it was observed that the event insured against should be one which involves some amount of uncertainty. Firstly, there must either be some uncertainty as to whether the event will ever happen or that if the event ever happens the time at which it happens must be unknown to all the parties. Secondly, the event insured against must be of an advanced character to the insured so that the insured should not on his own volition create that loss or risk and the loss or risk being expressed in pecuniary terms. Thirdly, the event insured against must be of accidental nature.n gambling the risk is created by the contract.

The court in Robertson –v- Hamilton (1911) AC observed that although there are some activities which may prima facie look like insurance transactions they lack in one specific quality in the sense that the risk is of essence to insurance contract and that the insured is moved to effect the contract because of risk of loss and does not, like in these other transactions create the risk of loss by the contract itself. In gambling the contributions are not based on risks involved while in insurance the premiums are based on risks involved. Gamblers are optimists and insurers are pessimists.

NATURE OF INSURANCE CONTRACT

With regard to the parties to the contract, insurance is a bi-party contract and unlike other transactions where we would require the capacity of parties to contract, there is no special requirement as to capacity of the insured before entering into a contract. It has been held that insanity does not incapacitate an insured person. The only requirement needed for the insured before the contract is entered into is that he must have an insurable interest in the subject matter of the insurance before he is.

Held: P’s claim should fail because his aunt had not fully disclosed material facts and the company had considered that even if she had answered to the affirmative they would not have rejected her proposal on account of insanity. The Court held that the contract would have been enforceable had she fully disclosed material facts.

In Darrel –v- International Insurance Company (1880)5 QBD P was drunk when he went to take out a policy. The agent of the insurance company agreed to negotiate terms of policy. He signed it and paid the premiums. 2 years later he fell and got injured on a road. When he claimed under the policy the insurance company declined to pay arguing that by reason of drunkenness he lacked capacity to contract on the date the contract was made.

Held: P’s claim succeeds as drunkenness could not incapacitate him to contract. It is only if by reason of drunkenness P had failed to disclose material facts, would the contract be invalidated, not by reason of drunkenness but non-disclosure. On the part of the offeree (insurer) the legal requirements are that it must be a body corporate. See the control mechanisms above on what insurer must be like to be applicable.

FUNDAMENTAL RIGHTS IN INDIAN CONSTITUTION

The Fundamental Rights in India enshrined in Part III of the Constitution of India guarantee civil liberties such that all Indians can lead their lives in peace and harmony as citizens of India.

The development of Fundamental Rights in India is heavily inspired by the United States Bill of Rights. These rights are included in the constitution because they are considered essential for the development of the personality of every individual and to preserve human dignity.

  • Fundamental Rights are included in Part-III of the Indian constitution which is also known as the Magna Carta of the Indian Constitution.
  • These rights are called fundamental rights because they are justiciable in nature allowing persons to move the courts for their enforcement, if and when they are violated.

 the Indian Constitution provided 7 Fundamental Rights which have now been revised to 6 Fundamental Rights which are as follows-:

Originally Right to property (Article 31) was also included in the Fundamental Rights. However, by the 44th Constitutional Amendment Act, 1978, it was deleted from the list of Fundamental Rights and made a legal right under Article 300A in Part XII of the constitution.

1. Right to equality (Articles 14–18)

 2. Right to freedom (Articles 19–22)

 3. Right against exploitation (Articles 23–24) 

4. Right to freedom of religion (Articles 25–28) 

5. Cultural and educational rights (Articles 29–30)

 6. Right to constitutional remedies (Article 32)

Features of The Fundamental Rights

Some of the salient features of Fundamental Rights include:

  • FRs are protected and guaranteed by the constitution.
  • FRs are NOT sacrosanct or absolute: in the sense that the parliament can curtail them or put reasonable restrictions for a fixed period of time. However, the court has the power to review the reasonability of the restrictions.
  • FRs are justiciable: The constitution allows the person to move directly to the Supreme Court for the reinforcement of his fundamental right as and when they are violated or restricted.
  • Suspension of Fundamental Rights: All Fundamental Rights are suspended during National Emergencies except the rights guaranteed under Articles 20 and 21.
  • Restriction of Fundamental Rights: The Fundamental Rights can be restricted during military rule in any particular area.
Fundamental Rights
Articles
1. Right to equality(a) Article 14 – Equal protection of laws and equality before the law
(b) Article 15 – Prohibition of discrimination on grounds of religion, caste, sex, place of birth, or race.
(c) Article 16 – Equality of opportunity in terms of public employment.
(d) Article 17 – Abolition of untouchability and prohibition of its practice.
(e) Article 18 – Abolition of titles except military and academic.
2. Right to freedom(a) Article 19 – Protection of six rights regarding freedom of:
(i) speech and expression, (ii) assembly, (iii) association, (iv) movement, (v) residence, and (vi) profession
(b) Article 20 – Protection in a conviction for offenses.
(c) Article 21 – Protection of life and personal liberty.
(d)Article 21A –  Right to elementary education.’
(e) Article 22 –  Protection against arrest and detention in certain cases.
3.  Right against exploitation(a) Article 23 – Prohibition of traffic in forced labour and human beings.
(b) Article 24 – Prohibition of employment of children in Companies and factories, etc.
4. Right to freedom of religion(a) Article 25 – Freedom of conscience and free profession, practice, and propagation of religion
.(b) Article 26 – Freedom to manage religious affairs.
(c) Article 27 – Freedom from payment of taxes for promotion of any religion or religious affairs.
(d) Article 28 – Freedom from attending religious instruction or worship in certain educational institutions
5. Cultural and educational rights(a) Article 29 – Protection of language, script, and culture of minorities. 
(b) Article 30 – Rights of minorities to establish and administer educational institutions.
6. Right to constitutional remediesArticle 32 – Right to move the Supreme Court for the enforcement of fundamental rights including the writs of
(i)  Habeas corpus, 
(ii) Mandamus,   
(iii) Prohibition,
(iv) Certiorari,
(v)  Quo warrento

SALE and AGREEMENT TO SELL

Sale

A contract of sale is a generic term and includes both an actual sale and an agreement to sell. Section 4 provides that if the property in goods is transferred from the seller to the buyer under a contract, the contract is called a sale.

Agreement to sell

Where the transfer of the property in the goods will take place at a future time or is subject to some condition that has to be fulfilled, the contract is called an agreement to sell. Such an agreement to sell becomes a sale when the prescribed time lapses or the conditions are fulfilled. An agreement to sell can be described as the transfer of ownership of items that will happen in the future or that may happen if certain requirements are met. Section 4 (3) When the allotted time has passed or the requirements for the transfer are met, an agreement to sell also becomes a sale. The terms and circumstances of the offer of a property by the seller to the buyer are therefore established through an agreement to sell.

The price at which it will be sold and the expected payment date are included in these terms and conditions. It can also incorporate the idea of a contingent contract as defined by Section 31 of the Indian Contract Act of 1872. As a result, a contract to sell is a promise to act or not act in response to the occurrence or non-occurrence of a contingent event.

Both parties must act together and abide by all the terms and conditions outlined in the sale agreement throughout the whole deal process, up until the creation or completion of the sale deed. As a result, the sale deed is written using an agreement to sell as its foundation. In other words, a sale agreement is a confirmation of a potential future development that could happen if the terms and conditions stipulated in the present are met.

S.No.BasisSaleAgreement to Sell
1.DefinitionIt can be defined as the transfer of ownership of the goods by the seller to the buyer in exchange for the monetary consideration paid or promised, or partly paid and partly promised.It can be defined as the transfer of title of ownership on a future date after satisfying certain conditions or contingent clauses.
2.MeaningIn sale, the goods are transferred from the seller to the buyer immediately.In the agreement to sell, the property in the goods does not transfer immediately but at a future date specified in the agreement.
3.Executed contract/Executory contractBoth the sale and the agreement to sell are contracts. A contract of sale is an executed contract, which means both parties have fully performed their obligations.An agreement to sell is an executed contract where the parties have not fully performed their obligations.
4.Liable to sueIn both the sale and the agreement to sell, the seller can sue the buyer. In a contract of sale, the seller can sue the buyer for breaching the contract of sale.The seller can sue the buyer only for the damages, not the price.
5.Sale taxSales are liable for the sales tax.An agreement to sell is not liable for the sales tax.
6.Right to resaleIn a contract of sale, the seller has no right to resell the goods.In an agreement to sell, the seller has the right to resale the goods.
7.Liability for damageIn both the sale and the agreement to sell, there is a liability for damages to goods. If the goods are destroyed, the loss should be borne by the buyer even though the goods are in the possession of the seller.If the goods are destroyed, the loss should be borne by the seller even though the goods are in the possession of the buyer.
8.Right in rem/Right in personamThe Sale gives the right in rem, i.e. against the whole world.An agreement to sell gives the right in personam i.e., between the parties only.
9.Right to recover the moneyIf the buyer refuses to pay, the unpaid seller may have the right to recover the money as provided under Section 46 of the Sale of Goods Act of 1930.If the buyer refuses to accept and pay, the seller may claim non-acceptance damages.
10.ExamplesExample: Ram sold 12 bags of sugar to Ravi for a payment of Rs. 7,000.Example: Ram agrees to sell 12 bags of sugar to Ravi against a payment of Rs. 7,000 after getting the stock.

Conclusion

Hence, we conclude that when the seller agrees to sell the goods to the buyer at a future specified date or after the necessary conditions are fulfilled, then it is known as an agreement to sell, whereas when the seller sells goods to the customer for a price and the transfer of goods from the vendor to the customer takes place at the same time, then it is known as a sale. Also, we have seen various points of difference between the sale and the agreement to sell, apart from the period when the goods are delivered.

Transfer of property in goods

Meaning of Passing of Property/Transfer of Property.

Passing of property implies transfer of ownership and not the physical possession of goods.For example,where a principal sends goods to his agent,he merely transfers the physical possession and not the ownership of goods.Here,the principal is the owner of the goods but is not having possession of goods and the agent is having possession of goods but us not the owner.
Significance of Transfer of Property
The time of transfer of ownership of goods decides various rights and liabilities of the seller and the buyer.Thus,it becomes very important to know the exact time of transfer of ownership of goods from seller to buyer to answer the following questions:

  1. Who shall bear the risk?
    It is the owner who has to bear the risk and not the person who merely has the possession.
  2. Who can take action against third party?
    It is the owner who can take action and not the person who merely has the possession.
  3. Whether a seller can sue for price?
    The seller can sue for the price only if the ownership of goods has been transferred to the buyer.
  4. In case of insolvency of a buyer whether the official receiver or assignee can take the possession of goods from seller?
    The Official Receiver or Assignee can take the possession of of goods from seller only if the ownership of goods has been transferred to the buyer.
  5. In case of insolvency of a seller whether the official receiver or assignee can take the possession of goods from buyer?
    The official receiver or assignee can take the possession of goods from buyer only if the ownership of goods has not been transferred to the buyer.
    Rules relating to Passing of Property/Transfer of Ownership from seller to buyer
    For the purposes of ascertaining the time at which the ownership is transferred from seller to the buyer,the goods have been classified into the following three categories:
    a) Specific or ascertained goods
    Specific goods mean goods identified and agreed upon at the time when a contract of sale is made.[Section 2(14)]
    b) Unascertained goods
    c) Goods sent ‘on approval’ or ‘on sale on return’ basis.
    Performance of the Contract
    It is the duty of the seller and buyer that the contract is performed. The duty of the seller is to deliver the goods and that of the buyer to accept the goods and pay for them in accordance with the contract of sale. Unless otherwise agreed, payment of the price and the delivery of the goods and concurrent conditions, i.e., they both take place at the same time as in a cash sale over a shop counter.
    Delivery (Sections 33-39) Delivery is the voluntary transfer of possession from one person to another. Delivery may be actual, constructive or symbolic. Actual or physical delivery takes place where the goods are handed over by the seller to the
    buyer or his agent authorized to take possession of the goods.
    1.Constructive delivery takes place when the person in possession of the goods acknowledges that he holds the goods on behalf of and at the disposal of the buyer.
    For example, where the seller, after having sold the goods, may hold them as bailee the buyer, there is constructive delivery.
    2.Symbolic delivery is made by indicating or giving a symbol. Here the goods themselves are not delivered, but the “means of obtaining possession” of goods is delivered, e.g, by delivering the key of the warehouse where the goods are stored,
    bill of lading which will entitle the holder to receive the goods on the arrival of the ship.
    Rules as to delivery
    The following rules apply regarding delivery of goods:
    (a) Delivery should have the effect of putting the buyer in possession.
    (b) The seller must deliver the goods according to the contract.
    (c) The seller is to deliver the goods when the buyer applies for delivery; it is the duty of the buyer to claim delivery.
    (d) Where the goods at the time of the sale are in the possession of a third person, there will be delivery only when that person acknowledges to the buyer that he holds the goods on his behalf.
    (e) The seller should tender delivery so that the buyer can take the goods. It is no duty of the seller to send or carry the goods to the buyer unless the contract so provides. But the goods must be in a deliverable state at the time of delivery or
    tender of delivery. If by the contract the seller is bound to send the goods to the buyer, but no time is fixed, the seller is bound to send them within a reasonable time.
    (f) The place of delivery is usually stated in the contract. Where it is so stated, the goods must be delivered at the specified place during working hours on a working day. Where no place is mentioned, the goods are to be delivered at a place at which they happen to be at the time of the contract of sale and if not then in existence they are to be delivered at the place at which they are manufactured or produced.
    (g) The seller has to bear the cost of delivery unless the contract otherwise provides. While the cost of obtaining delivery is said to be of the buyer, the cost of the putting the goods into deliverable state must be borne by the seller. In other words, in the absence of an agreement to the contrary, the expenses of and incidental to making delivery of the goods must be borne by the seller, the expenses of and incidental to receiving delivery must be borne by the buyer.
    (h) If the goods are to be delivered at a place other than where they are, the risk of deterioration in transit will, unless otherwise agreed, be borne by the buyer.
    (i) Unless otherwise agreed, the buyer is not bound to accept delivery in installments.
    Acceptance of Goods by the Buyer
    Acceptance of the goods by the buyer takes place when the buyer:
    (a) intimates to the seller that he has accepted the goods; or
    (b) retains the goods, after the lapse of a reasonable time without intimating to the seller that he has rejected them; or
    (c) does any act on the goods which is inconsistent with the ownership of the seller, e.g., pledges or resells.
    If the seller sends the buyer a larger or smaller quantity of goods than ordered, the buyer may:
    (a) reject the whole; or
    (b) accept the whole; or
    (c) accept the quantity be ordered and reject the rest. If the seller delivers with the goods ordered, goods of a wrong description, the buyer may accept the goods ordered and reject the rest, or reject the whole. Where the buyer rightly rejects the goods, he is not bound to return the rejected goods to the seller. It is sufficient if he intimates the seller that he refuses to accept them. In that case, the seller has to remove them.
    Installment Deliveries
    When there is a contract for the sale of goods to be delivered by stated installments which are to be separately paid for, and either the buyer or the seller commits a breach of contract, it depends on the terms of the contract whether the breach is a
    repudiation of the whole contract or a severable breach merely giving right to claim for damages.
    Suits for Breach of Contract
    Where the property in the goods has passed to the buyer, the seller may sue him for the price. Where the price is payable on a certain day regardless of delivery, the seller may sue for the price, if it is not paid on that day, although the property in the goods has not passed.
    Where the buyer wrongfully neglects or refuses to accept the goods and pay for them, the seller may sue the buyer for damages for non-acceptance. Where the seller wrongfully neglects or refuses to deliver the goods to the buyer, the buyer may sue him for damages for non-delivery.
    Where there is a breach of warranty or where the buyer elects or is compelled to treat the breach of condition as a breach of warranty, the buyer cannot reject the goods. He can set breach of warranty in extinction or diminution of the price
    payable by him and if loss suffered by him is more than the price he may sue for the damages.
    If the buyer has paid the price and the goods are not delivered, the buyer can sue the seller for the recovery of the amount paid. In appropriate cases the buyer can also get an order from the court that the specific goods ought to be delivered.
    Anticipatory Breach
    Where either party to a contract of sale repudiates the contract before the date of delivery, the other party may either treat the contract as still subsisting and wait till the date of delivery, or he may treat the contract as rescinded and sue for damages for the breach.
    In case the contract is treated as still subsisting it would be for the benefit of both the parties and the party who had originally repudiated will not be deprived of:
    (a) his right of performance on the due date in spite of his prior repudiation; or
    (b) his rights to set up any defense for non-performance which might have actually arisen after the date of the prior repudiation.
    Measure of Damages
    The Act does not specifically provide for rules as regards the measure of damages except by stating that nothing in the Act shall affect the right of the seller or the buyer to recover interest or special damages in any case were by law they are
    entitled to the same. The inference is that the rules laid down in Section 73 of the Indian Contract Act will apply.

The Semi-Conductor Integrated Circuits Layout Design Act, 2000

Semiconductor Integrated Circuit Layout Design(SICLD) Act, 2000, has come into operation in India w.e.f. 4th September 2000. As per the provisions of this Act, Registrar Semiconductor Integrated Circuits Layout-Design Registry under the  Ministry of Electronics and Information Technology (MeitY) has been appointed with its head office at Electronics Niketan, 6 CGO Complex, Lodi Road New Delhi-110003.The Registry maintains the Register of Layout-Designs and records in it the registered layout-designs with the names, addresses, and descriptions of the proprietor and such other matters related to the registered layout-designs.

Definitions

  • “Semiconductor integrated circuit” means a product having transistors or other circuitry elements, which are inseparably formed on a semiconductor material or an insulating material or inside the semiconductor material and designed to perform an electronic circuitry function.
  • “Layout-design” means a layout of transistors, and other circuitry elements and includes lead wires connecting such elements and expressed in any manner in a semiconductor integrated circuit.
  • “Commercial exploitation” in relation to the SICLD means to sell, lease, offer or exhibit for sale or otherwise distribute such semiconductor integrated circuit for any commercial purpose.

Electronics and Information technology is one of the fastest growing sectors that has played a significant role in world economy. This is primarily due to the advancements in the field of electronics, computers and telecommunication. Microelectronics, which primarily refers to Integrated Circuits (ICs) ranging from, Small Scale Integration (SSI) to Very Large Scale Integration (VLSI) on a semiconductor chip – has rightly been recognized as a core, strategic technology world-over, especially for Information Technology (IT) based society. Design of integrated circuits requires considerable expertise and effort depending on the complexity. Therefore, protection of Intellectual Property Rights (IPR) embedded in the layout designs is of utmost importance to encourage continued investments in R & D to result in technological advancements in the field of microelectronics. The practice of providing protection through the methods of Copyright, Patents did not appropriately accommodate the requirements of Intellectual Property Rights protection for the Layout-Designs of Integrated Circuits. This was because of the fact that in the context of Layout Designs, the concept of “originality” is of utmost significance, whether it is a “novelty or not”. While the Patent Law requires that the idea should be original as well as novel, the copyright law is too general to accommodate the original ideas of scientific creation of LayoutDesigns of Integrated Circuits.

 In view of the above, the necessity for providing protection for Layout-Designs of Integrated Circuits was felt to reward and encourage an adequate level of investment of human, financial and technological resources. The Majority of countries that attach significance to protection of Intellectual Property Rights in the Semiconductor Integrated Circuits provides for sui generis system of protection of Layout-Designs of Integrated Circuits, which is usually contained in a separate Act. Trade Related Intellectual Property Rights (TRIPS) Agreement under WTO contains provisions with regard to setting up of standards concerning availability, scope and use of Intellectual Property Rights, Geographical Indications, Layout-Design of Integrated Circuits etc. Therefore, the Government enacted the Semiconductor Integrated Circuit LayoutDesigns Act, 2000 providing for protection of Semiconductor Integrated Circuits Layout- Designs by process of registration, mechanism for distinguishing Layout-Designs which can be protected, rules to prohibit registration of Layout-Designs which are not original and/or which have been commercially exploited, period for protection, provisions with regard to infringement, payment of royalty for registered Layout-Design, provisions for dealing with willful infringement by way of punishment, appointing a Registrar for registering the Layout Designs and mechanism of Appellate Board. To conclude, the various modifications and amendments to earlier Intellectual Property Laws are an indication of India’s move towards new IPR regime so as to prepare ourselves for the global trade competition.

The Protection of Plant Varieties and Farmers’ Rights Act, 2001

The concept of Plant Breeders’ Rights arises from the need to provide incentives to plant breeders engaged in the creative work of research which sustains agricultural progress through returns on investments made in research and to persuade the researcher to share the benefits of his creativity with society. The issue of enacting a law relating to Plant Varieties Protection and Farmers’ Rights in India assumed importance particularly in the wake of TRIPS agreement under WTO which seeks to promote effective protection of Intellectual Property Rights in all fields of technology. Article 27 of TRIPS Agreement defines patentable subject matter and requires member countries to provide for the protection of plant varieties whether by patenting or by an effective sui generis system or by any combination thereof. With a view to provide for the establishment of an Authority to give an effective system of protection of the rights of plant breeders and farmers, and to encourage the development of new varieties of plants and to give effect to the provisions of TRIPS Agreement, the Government enacted the Protection of Plant Varieties and Farmers’ Right Act, 2001.

This Act seeks to stimulate investment for research and development both in the public and private sectors for the development of new plant varieties by ensuring appropriate returns on such investments. It also seeks to facilitate the growth of the seed industry in the country through domestic and foreign investment to ensure the availability of high quality seeds and planting material to Indian farmers. It also recognizes the role of farmers as cultivators and conservers and the contribution of traditional, rural and tribal communities to the country’s agro biodiversity by rewarding them for their contribution through benefit sharing and protecting the traditional rights of the farmers. The Act also provides for setting up of the Protection of Plant Varieties and Farmer’s Rights Authority to promote and develop new varieties of plants and promote rights of the farmers and breeders.

Objectives

  1. To establish an effective system for the protection of plant varieties, the rights of farmers and plant breeders and to encourage the development of new varieties of plants.
  2. To recognize and protect the rights of farmers in respect of their contributions made at any time in conserving, improving and making available plant genetic resources for the development of new plant varieties.
  3. To accelerate agricultural development in the country, protect plant breeders’ rights; stimulate investment for research and development both in public & private sector for the development new of plant varieties.
  4. Facilitate the growth of seed industry in the country which will ensure the availability of high quality seeds and planting material to the farmers.

The Geographical Indications of Goods (Registration and Protection ) Act, 1999:

 Until recently, Geographical indications were not registrable in India and in the absence of statutory protection, Indian geographical indications had been misused by persons outside India to indicate goods not originating from the named locality in India. Patenting turmeric, neem and basmati are the instances which drew a lot of attention towards this aspect of the Intellectual property. Mention should be made that under the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS), there is no obligation for other countries to extend reciprocal protection unless a geographical indication is protected in the country of its origin. India did not have such a specific law governing geographical indications of goods which could adequately protect the interest of producers of such goods. To cover up such situations it became necessary to have a comprehensive legislation for registration and for providing adequate protection to geographical indications and accordingly the Parliament has passed a legislation, namely, the Geographical indication of Goods (Registration and Protection) Act, 1999. The legislation is administered through the Geographical Indication Registry under the overall charge of the Controller General of Patents, Designs and TradeMarks. 

A geographical indication (GI) is a sign used on products that have a specific geographical origin and possess qualities or a reputation that are due to that origin. In order to function as a GI, a sign must identify a product as originating in a given place

The salient features of this legislation are as under: 

(a) Provision of definition of several important terms like “geographical indication”, “goods”, “producers”, “packages”, “registered proprietor”, “authorized user” etc. 

(b) Provision for the maintenance of a Register of Geographical Indications in two parts-Part A and Part B and use of computers etc. for maintenance of such Register. While Part A will contain all registered geographical indications, Part B will contain particulars of registered authorized users. 

(c) Registration of geographical indications of goods in specified classes. 

(d) Prohibition of registration of certain geographical indications. 

(e) Provisions for framing of rules by Central Government for filing of application, its contents and matters relating to substantive examination of geographical indication applications. 

(f) Compulsory advertisement of all accepted geographical indication applications and for inviting objections.

 (g) Registration of authorized users of registered geographical indications and providing provisions for taking infringement action either by a registered proprietor or an authorized user. 

(h) Provisions for higher level of protection for notified goods. 

(i) Prohibition of assignment etc. of a geographical indication as it is public property. 

(j) Prohibition of registration of geographical indication as a trademark. 

(k) Appeal against Registrar’s decision would be to the Intellectual Property Board established under the Trade Mark legislation.

 (l) Provision relating to offenses and penalties.

 (m) Provision detailing the effects of registration and the rights conferred by registration.

 (n) Provision for reciprocity powers of the registrar, maintenance of Index, protection of homonymous geographical indications etc.

The Designs Act, 2000

The Designs Act of 1911 has been replaced by the Designs Act, 2000. The Design Act in India was enacted by the Legislature on May 25, 2000 with a view to consolidate and amend the law relating to protection of designs in India. Under the TRIPS Agreement, minimum standards of protection of industrial designs have been provided for.In view of considerable progress made in the field of science and technology, a need was felt to provide a more efficient legal system for the protection of industrial designs in order to ensure effective protection to registered designs, and to encourage design activity to promote the design element in an article of production. In this backdrop, the Designs Act, 2000 has been enacted essentially to balance these interests and to ensure that the law does not unnecessarily extend protection beyond what is necessary to create the required incentive for design activity while removing impediments to the free use of available designs. 

The Designs Act, 2000 (“the Act”), is a complete code in itself and protection under it is wholly statutory in nature. It protects the visual design of objects that are not purely utilitarian. Section 2(d) of the Act, defines a Design as:

  • “design” means only the features of shape, configuration, pattern, ornament or composition of lines or colours applied to any article whether in two dimensional or three dimensional or in both forms, by any industrial process or means, whether manual, mechanical or chemical, separate or combined, which in the finished article appeal to and are judged solely by the eye; but does not include any mode or principle of construction or anything which is in substance a mere mechanical device, and does not include any trade mark as defined in clause (v) of sub-section (1) of section 2 of the Trade and Merchandise Marks Act, 1958 (43 of 1958) or property mark as defined in section 479 of the Indian Penal Code (45 of 1860) or any artistic work as defined in clause (c) of section 2 of the Copyright Act, 1957 (14 of 1957).

The new Act complies with the requirements of TRIPS and hence is directly relevant for international trade. Industrial Design law deals with the aesthetics or the original design of an industrial product. An industrial product usually contains elements of both art and craft, that is to say artistic as well as functional elements.The design law excludes from its purview the functioning features of an article and grants protection only to those which have an aesthetic appeal. For example, the design of a teacup must have a hollow receptacle for holding tea and a handle to hold the cup. These are functional features that cannot be registered. But a fancy shape or ornamentation on it would be registrable. Similarly, a table, for example, would have a flat surface on which other objects can be placed. This is its functional element. But its shape, colour or the way it is supported by legs or otherwise, are all elements of design or artistic elements and therefore, registrable if unique and novel. Today, industrial design has become an integral part of consumer culture where rival articles compete for consumer’s attention. It has become important therefore, to grant to an original industrial design adequate protection.

The salient features of the Design Act, 2000 are as under:

 (a) Enlarging the scope of definition of the terms “article”, “design” and introduction of definition of “original”.

 (b) Amplifying the scope of “prior publication”. 

(c) Introduction of provision for delegation of powers of the Controller to other officers and stipulating statutory duties of examiners. 

(d) Provision of identification of non-registrable designs. 

(e) Provision for substitution of applicant before registration of a design. 

(f) Substitution of Indian classification by an internationally followed system of classification. 

(g) Provision for inclusion of a register to be maintained on computer as a Register of Designs. 

(h) Provision for restoration of lapsed designs.

 (i) Provisions for appeal against orders of the Controller before the High Court instead of the Central Government.

 (j) Revoking the period of secrecy of two years of a registered design. 

(k) Providing for compulsory registration of any document for transfer of right in the registered design.

 (l) Introduction of additional grounds in cancellation proceedings and provision for initiating the cancellation proceedings before the Controller in place of the High Court. 

(m) Enhancement of quantum of penalty imposed for infringement of a registered design. 

(n) Provision for grounds of cancellation to be taken as defense in the infringement proceedings to be in any court not below the Court of District Judge. 

(o) Enhancing the initial period of registration from 5 to 10 years, to be followed by a further extension of five years.

 (p) Provision for allowance of priority to other convention countries and countries belonging to the group of countries or inter-governmental organizations apart from United Kingdom and other Commonwealth Countries. (q) Provision for avoidance of certain restrictive conditions for the  control of anti competitive practices in contractual licenses. 

Cyber Crime

Cybercrime is a crime that involves a computer and a network. The computer may have been used to commit the crime and in many cases, it is also the target. Cybercrime may threaten a person or a nation’s security and financial health.

Definition of Cyber crime

Any offenses committed against individuals or groups of individuals to harm the reputation or cause physical or mental trauma through electronic means can be defined as Cybercrime. Electronic means can include but are not limited to, the use of modern telecommunication networks such as the Internet (networks including chat rooms, emails, notice boards and groups) and mobile phones (Bluetooth/SMS/MMS).

Why is Cybercrime considered a grave offense?

There are many privacy concerns surrounding cybercrime when sensitive information is intercepted and leaked to the public, legally or otherwise. Some of that information may include data about military deployments, internal government communications, and even private data about high-value individuals. Cybercrime is not confined to individuals alone. Internationally, both governmental and non-state actors engage in cybercrimes, including espionage, financial theft, and other cross-border crimes. Cybercrimes crossing international borders and involving the actions of at least one nation-state is sometimes referred to as cyberwarfare.

Laws against Cybercrime in India

Ever since the introduction of cyber laws in India, the Information Technology Act (IT Act) 2000  covers different types of crimes under cyber law in India. The following types of cybercrimes are covered under the IT Act 2000.

  • Identity theft – Identity theft is defined as theft of personnel information of an individual to avail financial services or steal the financial assets themselves.
  • Cyberterrorism – Cyberterrorism is committed with the purpose of causing grievous harm or extortion of any kind subjected towards a person, groups of individuals, or governments.
  • Cyberbullying – Cyberbullying is the act of intimidating, harassment, defaming, or any other form of mental degradation through the use of electronic means or modes such as social media.
  • Hacking – Access of information through fraudulent or unethical means is known as hacking. This is the most common form of cybercrime know to the general public.
  • Defamation – While every individual has his or her right to speech on internet platforms as well, but if their statements cross a line and harm the reputation of any individual or organization, then they can be charged with the Defamation Law.
  • Trade Secrets – Internet organization spends a lot of their time and money in developing software, applications, and tools and rely on Cyber Laws to protect their data and trade secrets against theft; doing which is a punishable offense.
  • Freedom of Speech – When it comes to the internet, there is a very thin line between freedom of speech and being a cyber-offender. As freedom of speech enables individuals to speak their mind, cyber law refrains obscenity and crassness over the web.
  • Harassment and Stalking – Harassment and stalking are prohibited over internet platforms as well. Cyber laws protect the victims and prosecute the offender against this offense.

REMEDIES

The Information Technology Act of 2000 subsequently revised in 2008, was enacted to set limitations for these types of attackers when it came to committing Cyber-crimes. For laypeople, this is known as the Cyber-law. This Act establishes sanctions and compensation for offences involving technology. When a person is a victim of a cybercrime, he has the option of going to court to pursue legal action against the perpetrator.

The victim has the right to file an appeal in court for compensation for the wrong done to him under section 43A of the Information Technology Act of 2000, as this section covers the penalties and compensations for offences such as “damage to the computer, computer system, or computer networks, etc.”Anybody corporate that deals with sensitive data, information, or maintains it on its own or on behalf of others and negligently compromises such data or information will be liable under this section and will be required to pay compensation according to the court’s discretion.

Section 65 of the Act covers the punishment for the offences which involve “tampering with computer source documents”, where according to the section, “Whoever knowingly or intentionally conceals, destroys or alters or intentionally or knowingly causes another to conceal, destroy, or alter any computer source code used for a computer, computer program, computer system or computer network, when the computer source code is required to be kept or maintained by law for the time being in force, shall be punishable with imprisonment up to three years, or with fine which may extend up to two lakh rupees, or with both”.

There are still some gaps in the IT Act of 2008 since there are new and unknown cyber-offenses for which the law needs to stretch its arms and tighten its grip.

Here are also offences that are not covered by the IT Act because they are already covered by other laws, such as “Cyber-defamation,” which is governed by the Indian Penal Code, 1860. The term “Defamation” and its punishment are defined under this Act, so there is no need for a separate definition elsewhere because the impact of such an online offence is the same as it is offline.

VALIDITY OF ONLINE CONTRACT

 E-Contract is an aid to drafting and negotiating successful contracts for consumer and business e-commerce and related services. It is designed to assist people in formulating and implementing commercial contracts policies within e-businesses. It contains model contracts for the sale of products and supply of digital products and services to both consumers and businesses. An e-contract is a contract modeled, executed and enacted by a software system. Computer programs are used to automate business processes that govern e-contracts. E-contracts can be mapped to inter-related programs, which have to be specified carefully to satisfy the contract requirements. These programs do not have the capabilities to handle complex relationships between parties to an e-contract 

In a country like India, where the literacy rate is not so high, the concept of ‘Digital India’ is far reaching. People still feel insecure to do online based transactions mainly because the terms  and conditions of such contracts are not transparent. Another major issue is the nature of the law governing the electronic contracts. Even if the IT Act, 2000 has legalized electronic contracts, there are no definite provisions mentioned in the Act. 

Documents are mainly registered for conservation of evidence, assurance of title and to protect oneself from fraud. The evidentiary value of electronic contracts has been given recognition and can be understood in the light of various sections of Indian Evidence Act. Sec 65B of the Indian Evidence Act deals with the admissibility of electronic records. As per Sec 65B of the Indian Evidence Act any information contained in an electronic record produced by the computer in printed, stored or copied form shall deemed to be a document and it can be admissible as an evidence in any proceeding without further proof of the original subject to following conditions are satisfied such as the computer from where it was produced was in regular use by a person having lawful control over the system at the time of producing it, during the ordinary course of activities the information was fed into the system on a regular basis, the output computer was in a proper operating condition and have not affected the accuracy of the data entered.

 Section 85A, 85B, 88A, 90A and 85C of the Indian Evidence Act deal with the presumptions as to electronic records. Sec 85A has been inserted later to confirm the validity of electronic contracts. It says that any electronic record in the form of electronic agreement is concluded and gets recognized the moment a digital signature is affixed to such record. The presumption of electronic record is valid only in case of five years old record and electronic messages that fall within the range of Section 85B, Section 88A and Section 90A of Indian Evidence Act. 

REMEDIES FOR BREACH OF ONLINE CONTRACT

There is no specific rule in case of breach of online contract but the rules regarding remedies for breach of contract can be followed as provided in The Indian Contract Act. A valid contract gives rise to co- relative rights and obligations and they are enforceable in the court of law when infringed on breach of contract. The Contract Act mainly talks about two remedies for the breach of contract such as Damages and Quantum Meruit. But few other remedies are also available as provided in the Specific Relief Act such as specific performance of contract and injunction restraining the other party from making a breach of contract. Sec 73 and Sec 74 of the Indian Contract Act, The person whose rights are infringed by the breach of contract may bring an action for damages or compensation in terms of monetary value for the loss suffered by the party. Sec 73 to 75 provides rules regarding the assessment of damages based on the famous case Hadley vs. Baxendale. According to the rules laid down in this case, there can be damages which naturally arose on the usual course of things from such breach of contract and can be called ordinary damages and secondly, damages for loss arose from special circumstances i.e. special damages. Contract Act, 1872 deals with the rules regarding the remedy of damages on breach of contract.

 The person whose rights are infringed by the breach of contract may bring an action for damages or compensation in terms of monetary value for the loss suffered by the party. Sec 73 to 75 provides rules regarding the assessment of damages based on the famous case Hadley vs. Baxendale. According to the rules laid down in this case, there can be damages which naturally arose on the usual course of things from such breach of contract and can be called ordinary damages and secondly, damages for loss arose from special circumstances i.e. special damages. 

REMEDY CLAUSE These clauses state what rights the non-breaching party has if the other party breaches the contract. In contracts for the sale of goods, remedy clauses are usually designed to limit the seller’s liability for damages. 

Arbitration Clauses: An arbitration clause states that disputes arising under the contract must be settled through arbitration rather than through court litigation. Such clauses generally include the name of the organization that will conduct the arbitration, the city in which the arbitration will be held, and the method for selecting arbitrators. 

Merger Clauses: Merger clauses state that the written document contains the entire understanding of the parties. The purpose of merger clauses is to ensure that evidence outside the written document will not be admissible in court to contradict or supplement the terms of the written agreement. 

Breach of Contract: The parties to a contract must either perform or offer to perform their respective promises, unless such performance is dispensed with or excused under the provisions of the Act, or any other law. Promises bind the representatives of the promisor in the case of death of such promisor before performance, unless a contrary intention appears from a contract. In a contract the agreement being enforceable by law, each party to the contract is legally bound to perform his part of the obligation. Non-performance of the duty undertaken by a party in a contract amounts to breach of contract, for which he can be made liable.

Remedies for breach of contract

The legal remedies for breach of contract are: (a) damages; (b) specific performance of the contract; and (c) injunction.

 Damages: In practice damages constitute the main remedy. When a contract has been breached, the party who suffers by such breach is entitled to receive, from the party who has breached the contract, compensation for any loss or damage caused to him thereby, being loss or damages which naturally arose in the usual course of things from such breach or which the parties knew, when they made the contract, to be likely to result from the breach of it. Such compensation is not to be given for any remote and indirect loss of damage sustained by reason of the breach. 

A person who rightfully rescinds a contract is entitled to compensation for any damage, which he has sustained through non-fulfillment of the contract.

 Liquidated damages and penal stipulations If a sum is named in the contract as the amount to be paid in case of breach of contract, or if the contract contains any other stipulation by way of penalty, the party complaining of the breach is entitled, whether or not actual damage of loss is proved to have been caused thereby, to receive, from the party who has broken the contract, reasonable compensation, not exceeding the amount so named or the penalty stipulated for. 

A stipulation for increased interest from the date of default may be regarded as a stipulation by “way of penalty”. The court is empowered to reduce it to an amount which is reasonable in the circumstances.

 Specific performance In certain special cases (dealt with in the Specific Relief Act, 1963), the court may direct against the party in default “specific performance” of the contract, that is to say, the party may be directed to perform the very obligation which he has undertaken, by the contract. This remedy is discretionary and granted in exceptional cases. Specific performance means actual execution of the contract as agreed between the parties. 

  • Specific Performance of any contract may, in the discretion of the court be enforced in the following situations 
  • When there exists no standard for ascertaining the actual damage caused by the nonperformance of the act agreed to be done; or 
  •  When the act agreed to be done is such that monetary compensation for its nonperformance would not afford adequate relief. 

Instances where compensation would be deemed adequate relief are: 

 Agreement as a consequence of a breach by a landlord for repair of the rented premises;  Contract for the sale of any goods, for instance machinery or goods.

 Exceptions A contract which runs into such minute or numerous details or which is so dependent on the personal qualifications or volition of the parties, or otherwise from its nature is such, that the court cannot enforce specific performance of its material terms, cannot be specifically enforced. 

Another situation when a contract cannot be specifically enforced is where “the contract is in its nature determinable”. A contract is said to be determinable, when a party to the contract can put it to an end. A contract the performance of which involves the performance of a continuous duty, which the Court cannot supervise, cannot be specifically enforced. 

Persons who cannot obtain specific performance 

The specific performance of a contract cannot be obtained in favor of a person who could not be entitled to recover compensation for the breach of contract. Specific performance of a contract cannot be enforced in favor of a person who has become incapable of performing the contract that on his part remains to be performed, or who violates any essential term of the contract that on his part remains to be performed, or who acts fraudulently despite the contract, or who willfully acts at variance with, or in subversion, of the relation intended to be established by the contract.