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Kolkata, India
Delhi's Lieutenant Governor on 13 January passed a three-month order authorizing Commisioner Of Police to place the city under the National Security Act (NSA) for three months between 19 January and 18 read more
Delhi's Lieutenant Governor on 13 January passed a
three-month order authorizing Commisioner Of Police to place the city under the
National Security Act (NSA) for three months between 19 January and 18 April
in
the wake of protests against the Citizenship Amendment Act (CAA). Under the
National Security Act a person may be detained for up to 12 months without any charge.
Furthermore, the person is not allowed to be told about the charges for 10
days. The detained person may appeal to
a high court advisory board but during the trial, a lawyer is not permitted.
Although the Union home ministry has downplayed the
situation, a senior official in the central government said it was “a routine affair and the notification
was renewed from time to time”. There is nothing new in this. Such an order is issued once in every
three months that gives power to the police chief to detain under the NSA,” a
senior police officer said. Another police officer told The Print, “Under the
Act, the police chief or the district magistrate has this power. This has
always been there, though it is rarely exercised.”
Often, if authorities are convinced that he /
she is a threat to national security or law and order, the person can be held
under preventive detention for months. It is important to notify the state
government concerned that a person has been detained under the NSA. A similar
order was issued on 14 January, in Andhra Pradesh. The NSA had been extended to Jammu and
Kashmir in August 2019 after the revocation of Article 370 and the bifurcation
of the former state, allowing armed forces to detain an individual in the
valley on grounds of threat to national security.
Section 46(4) of the Code of Criminal Procedure was introduced in 2005 (hereinafter referred to as the Code) and the proviso for (1) of the section was inserted in 2009, this clause specifies the procedure read more
Section
46(4) of the Code of Criminal Procedure was introduced in 2005 (hereinafter
referred to as the Code) and the proviso for (1) of the section was inserted in
2009, this clause specifies the procedure for the arrest of a woman, section 46
of the act reads as follows:-
” Arrest how made –
1. In making an arrest the police
officer or other person making the same shall actually touch or confine the
body of the person to be arrested unless there be a submission to the custody
by word or action.
Provided that
where a woman is to be arrested, unless the circumstances indicate to the
contrary, her submission to custody on an oral intimation of arrest shall be
presumed and, unless the circumstances otherwise require or unless the police
officer is a female, the police officer shall not touch the person of the woman
for making her arrest.
2.
If such person forcibly resists the endeavor to arrest him, or attempts to
evade the arrest, such police officer or other person may use all means
necessary to effect the arrest.
3.
Nothing in this section gives a right to cause the death of a person who is not
accused of an offense punishable with death or with imprisonment for life.
4. Save in exceptional circumstances, no women shall be
arrested after sunset and before sunrise, and where such exceptional
circumstances exist, the woman police officer shall, by making a written
report, obtain the prior permission of the Judicial Magistrate of the first
class within whose local jurisdiction the offense is committed or the arrest is
to be made.
The
prerequisite for the provisions of sub-section (4) of Section 46 of the said
Code is therefore two-folded. If the police officer wants to apprehend the
woman after sunset and before daylight, exceptional circumstances must occur
for such an arrest. Where such exceptional circumstances occur, a Lady Police
Officer shall make a written report and receive prior authorization from the
Judicial Magistrate, First Class in whose jurisdiction the the arrest shall be
made.
Section 60A of the Code also states that –“
No arrest shall be made except in accordance with the provisions of this code
or any other law for the time being in force providing for arrest. “
Some violation of the rules
There
have been cases of a violation of section 46(4) of the code. One of the recent
cases Kavita Manikikar v.
Central Bureau of Investigation, Mumbai in which the lady filed
a written petition before the Bombay High Court for breach by the CBI officers
of section 46(4) and 60A of the Code, the High Court permitted the written
petition and held that the petitioner's arrest was unlawful and contrary to the
provisions of section 46(4) of the Code, and imposed a fine of Rs. 50,000/-on
the respondent.
The
legislature's purpose is to protect women, but sometimes police officers
violate the law and act inappropriately with women as happened in the case of Bharati S. Khandar v. Maruti Govind Jadhav
as the complainant (the lady) was aware of the provisions of section 46(1),
i.e. that only a female police officer could arrest a woman, so she declined to
go with the male police officer who came to arrest her at night, but she was
still unaware of section 46(4) of the code and was arrested after sunset and
also mistreated by the police.
Data protection is the mechanism by which personal information is shielded from theft, misuse or failure. Data protection is becoming more relevant as the amount of data generated and processed continues read more
Data
protection is the mechanism by which personal information is shielded from
theft, misuse or failure. Data protection is becoming more relevant as the
amount of data generated and processed continues to grow at unprecedented
rates. A large part of a data protection strategy therefore ensures data can be
restored quickly after any corruption or loss. The key components of data
protection include protecting data from misuse and maintaining data privacy.
The key principles of data protection are to safeguard and make available data
under all circumstances.
Personal
data is any information that applies to you, whether it involves your private,
personal, or public life. In the online environment, where large amounts of
personal data are exchanged and transmitted instantly around the globe, it is
becoming increasingly difficult for people to keep control of their personal
information. Data protection applies to the procedures, protections and
contractual laws that are put in place to protect and ensure that you remain in
control of your personal information. In short, you should be able to decide
whether or not you want to share some information, who has access to it, for
how long, why, and be able to alter some of that information, and more.
Data protection law in U.K and
India
Data
protection is a fundamental right within the European Union and the General
Data Protection Regulation (GDPR) is the new framework for securing that right.
It's has its own flaws but it's a very positive framework for users,
allowing Europeans to take back control of their personal information. Even as
the law is still being applied, it will come into force in May 2018, other
countries look to the GDPR as they establish or introduce their own data
protection regulations. The GDPR is considered to be a regulation which
regulates how companies protect personal data of European citizens. The GDPR
provisions apply to each Member State of the European Union, with the aim of
creating more effective customer and personal data protection across EU
nations. To put it simply, the GDPR requires a minimum set of standards for
companies that handle data of EU citizens to better protect the collection
and transfer of personal data from people. The Data Protection Act, 2018 is the
enactment of the General Data Protection Regulation (GDPR) by Britain. Those
responsible for using personal data must follow strict guidelines called '
principles of data protection’. They must ensure that the information is used
legally and transparently.
India's
data protection mechanism currently faces many challenges and resentments due
to the lack of a proper legislative framework. India being the world's largest
host of outsourced data processing could become the epicenter of cyber crimes,
this is largely due to the lack of adequate legislation. The best solution
will, however, come from good statutory regulations along with sufficient
knowledge of the public and the employees. It is high time that, we in India
have to pay attention towards data security. In India there is no express legislation
relating to data protection, although the Personal Data Protection Bill was
introduced in 2006 but it is still waiting to see light till this day. This
Bill follows a systematic model stating that it will regulate personal data
collection, processing and distribution. It is important to note that the
bill's applicability is limited to personal data as described in the
2nd clause of the Bill.
When
we talk about Indian scenario, the Information Technology (IT) Act, 2000 which
is also there and it governs the issues which relates to cyber crimes.
Provision in the IT Act which deals with cyber crimes such as Section-43A which
deals with compensation for damages caused by failure to maintain reasonable
security practices to protect sensitive personal data. Further, Data (Protection and Privacy) Bill
was also introduced in the Parliament in 2017 proposing to bring privacy under
ambit of legislation. This comes as a result of a verdict of the Hon’ble
Supreme Court of India which declared Right to Privacy under Article-21 of the
Indian Constitution.
Impact of GDPR on India
Data
under this regulation does not only include personal information such as names,
gender, e-mails but also the tracking of cookies and browser history and so on.
The scope of GDPR is very wide as it applies to Indian companies which are
present in European countries and even if not operating in an EU country but it
processes personal data of residents of Europe. Indian companies who have
potential to grow might not achieve the potential growth unless Indian legal framework
meets GDPR protection standards. GDPR’s effect on Indian companies which comes
under the scope of it might face heavy consequences as GDPR imposes heavy penalties
(€20 million or 4% of global profit, whichever is higher) with respect to
violation of its regulations.
Effects of GDPR on third party
transaction
This
regulation places equal liability on data controller (organizations that owns
the data and determines the purpose for which it will be used) and data
processor (who manage the data). GDPR states that if the third party is not in
compliance with the regulations it will be assumed that the controller is also
not in compliance for the same. Under GDPR, organizations who control the data
are required to ensure that the third party, to which they are providing
personal data, are in compliance and have adequate legal measures dealing with
data protection. Article 28 of GDPR now mandates, “any company who are doing
business in the EU will be responsible for all third parties processing
personal data on their behalf”. This measure is taken because nearly 63% of the
data breaches in 2018 were associated with third parties who were processing
that data.
There
are certain rights that GDPR contents that were present before its enforcement,
these rights are:
·
Right
to object: An individual can now make an objection regarding
the processing of his personal data in certain circumstances
·
Right
to erasure: Right to erase personal information in certain
circumstances. For example- at the end of a contract.
A
contract under GDPR will state that conduct of third parties that; they will
act on your documented instructions; they won’t contract sub-processors without
your prior approval; will return all personal data back at the end of the
contract.
United
Kingdom was diligent enough to constitute an act which is directly in line with
the GDPR. The reason behind this was to have an express legislation relating to
data security and protection. India is still to have the same in its legal
regime as many bill were introduced but never transformed into an act, the Data
(Protection and Privacy) Bill 2017 which was mostly in compliance with GDPR
provisions was also left hanging. India requires a legal framework that meets
both legal and public standards as prevalent in the jurisdictions from which
data is shipped to India. In practical terms the biggest hurdle is for India to
legally adjudicate and publicly view its domestic data protection law system as
adequate. Not having adequate legislations regarding data protection will
hinder the potential growth of the companies working in the respective
industry. India sees itself as the location where such companies will be able
to develop themselves. Thus, by creating a good data protection law India could
extend far beyond being a mere service provider to multinational corporations
around the world. In effect, it wants to set up India as a corporation.
On the 8th August 2009, the President of India inaugurated the Armed Forces Tribunal.The Armed Forces Tribunal Act 2007 was passed by Parliament read more
On the 8th August 2009, the President of India inaugurated the Armed Forces Tribunal.
The
Armed Forces Tribunal Act 2007 was passed by Parliament and led to the
formation of AFT with the authority of the Armed Forces Tribunal to adjudicate
or prosecute disputes and allegations relating to promotions, appointments,
certificates and conditions of service relating to individuals subject to the
Armed Forces Act 1950, the Navy Act 1957 and the Air Force Act 1950.
AFT
has Local Benches in Chandigarh, Lucknow, Kolkatta, Guwahati, Chennai, Kochi,
Mumbai, Jaipur in addition to the Chief Bench in New Delhi.
EVOLUTION OF THE CONCEPT OF CURATIVE PETITIONCurative petition is the last constitutional remedy open to an individual whose review petition has been rejected by Supreme Court. Although the Constitution read more
EVOLUTION OF THE CONCEPT OF CURATIVE PETITION
Curative
petition is the last constitutional remedy open to an individual whose review
petition has been rejected by Supreme Court. Although the Constitution makes
explicit reference to the Supreme Court's review power pursuant to Article 137,
it is silent on ' curative jurisdiction.’
In the case, Rupa
Ashok Hurra v. Ashok Hurra & Anr the curative petition was shaped and
structured, where the apex court reconsidered its judgment in
exercising its inherent power to prevent misuse of its proceedings and to cure
a serious miscarriage of justice.
In
the said decision it was clarified that the Court's curative power derives from
Article 142 of the Constitution, which grants the Court the power to do
justice.
The
Court, to prevent abuse of its process and to cure a gross miscarriage of
justice, may re-consider its judgments in exercise of its inherent power",
observed the 5-judge bench in that case.
Article
137 of the Indian Constitution supports the idea of curative petition. This
provides that the Supreme Court has the right to review any judgment rendered
by it in the matter of laws and rules made pursuant to Article 145. Such a
petition must be filed within 30 days of the date of the judgment or decision.
WHEN IS A CURATIVE PETITION AVAILABLE TO A PERSON?
a) Violation of the principles of natural justice where he was not a party to the lis but whose rights were adversely affected by the judgment.
b)He was a party to the lis, but the notice of the proceedings was not given and the case continued as if he has the choice.
c)Where a Learned Judge failed to disclose its connection to the subject-matter in the proceedings.
d)The parties to suspect prejudice and the verdict adversely affect the petitioners.
The
petitioner shall, in the curative petition thus filed, assert that the reasons
given in the petition for review had been taken and that it was dismissed by
circulation. The curative petition should also include a Senior Advocate
certification for the fulfillment of the requirements set out above.
PROCEDURE FOR FILING A CURATIVE
PETITION
REASONS FOR REFUSAL:
It may impose a penalty on the petitioner in case the Bench holds at any point that the petition is without any merit.
A recent examples of dismissed curative
petitions-
The
Supreme Court has rejected the curative pleas filed in the 2012 Nirbhaya
gangrape and murder case by two of the four death row convicts. The hearings
were in-chamber.The five judges were unanimous in stating that the two
disqualified petitioners did not have any substance in the curative petitions
filed.
The
bench said “The applications for stay of execution of death sentence are also
rejected. We have gone through the Curative Petitions and the relevant
documents. In our opinion, no case is made out within the parameters indicated
in the decision of this Court in Rupa
Ashok Hurra vs. Ashok Hurra & Another, reported in 2002 (4) SCC 388.
Hence, the Curative Petitions are dismissed,".
FEW EXAMPLES WHERE CURATIVE
PETITIONS WERE ALLOWED
The Supreme Court set
aside its own judgment which held that the conduct of a woman simply kicking
her daughter-in-law or threatening her with divorce would not fall within the
scope of "cruelty" pursuant to Section 498 A of the Indian Penal Code.
The three judge Bench allowed the National Commission for Women's (NCW)
curative petition by restoring the Special Leave Petition.
CONCLUSION
In the case Rupa Hurra V/s
Ashok Hurra, the Court gave shape to the contours of curative jurisdiction, in
order to do justice. Even though there is a narrow line that differentiates between a
curative petition and a petition for
review, the apex court has set out specific grounds for filing both of these
petitions and this makes it clear that the two petitions are totally different.
Therefore it can be said
that the concept of a curative petition is a statutory remedy that is a last
resort that arose in order to rectify the Supreme Court's decision by itself as
a legal and moral duty in determining the rarest of the rarest case.
A five-judge bench explicitly ruled on 28 September 2018 that Section-497 of Indian Penal Code,1860 is unconstitutional. The Hon’ble Supreme Court has ruled over its earlier judgments. Until now, the read more
A
five-judge bench explicitly ruled on 28 September 2018 that Section-497 of
Indian Penal Code,1860 is unconstitutional. The Hon’ble Supreme Court has ruled
over its earlier judgments. Until now, the Supreme Court in many cases has held
that decriminalization of the crime of adultery would erode the sanctity of
marriage and the whole fabric of society.
In
December 2017, Joseph Shine filed a petition challenging validity of Section-497,
the matter was referred to a five-judge bench from a three-judge bench in the
Supreme Court.
Issues/ questions raised before the
court:
·
Whether Section-497 is unconstitutional?
·
If adultery should be made gender
neutral?
·
Women were treated as an object under
law, is it justified with regard to current scenario?
History of judicial decisions
relating to adultery:
It
is obvious from a simple reading to bare provision of Section 497 of IPC that
this section punishes the male offender for committing adultery with a married
woman without her husband's permission or connivance.
In
the case of Yusuf Abdul Aziz v State of Bombay 1954 SCR 930, the accused i.e.
Yusuf was on a trial for adultery, he further challenged Section-497 on the
grounds that it violates Article-14 of the Constitution. The decision was given against him
in the Bombay High Court. He moved the matter to the Supreme Court and argued
that Section-497 does only apply to males and confers no criminality on women
and is also in violation of Article-14 and 15. The court held against the
appeal relying heavily on the provision mentioned in Article-15(3) and the apex
court further said that Section-497 is a special provision which is made for
women and is saved under the same.
It has to be kept in mind that the Indian Penal Code was framed by Britishers
in 1860 when women were considered to be a property of their husband. Back then
it was the result of the patriarchal structure and a clear reflection of the
same was Section-497.
Further, Justice Nariman said, “the
background in which this provision was enacted now needs to be stated”.
In 1860 when Penal Code was
enacted, the Hindu majority which was prevalent at that time had no law of
divorce as marriage was considered sacramental and also pre-1955 era a Hindu
could marry as many wives as he can. By analyzing this Justice Nariman said adultery
did not exist at that time as there was no divorce law and a man could marry
any number of women.
Back then, the scope of adultery
was much wider than it is now. At that time it was termed as a consideration of
marriage as a sacred institution and punishment for breach of trust.
Legislative
intent:
The intent behind Section-497 was that men should be held liable for the
offence and this was due to the fact that the position of women during that
period was not at par, they were considered to be a property of their husband
and the law was to protect interests of women.
Flaws
in the adultery laws in India: Then CJI Dipak Misra made certain observations that the adultery law
in India was based on a discriminative basis as it assumes one of the parties
as victims and the other one as criminal.
He also took the ‘consent’ aspect into consideration as it implies that a
woman can sleep outside her marriage with the permission of her husband which
implies that the husband controls and keeps a check on the sexual autonomy of
his wife.
Another major problem has been
that instead of dealing with personal issues in marriage, this law gave an
opportunity to the married couple to blame a third party because of inadequacy
of their marriage. Hence, it would be rather be more sensible to approach the court
for mutual divorce rather than putting a third party behind bars.
Decision
given by the court:
The Hon’ble Supreme Court struck
down the provision and contented that “husband cannot
be the master of his wife”
The Court observed:-
·
Section-497 is archaic and
constitutionally invalid- Section 497 disposes women of their autonomy, their independence and
their privacy. It is seen as a violation of their right to life and personal
freedom by embracing the notion of marriage that overthrows true equality.
Equality has been overthrown by introducing penal code penalties for a
gender-based approach to man-woman relationships. Under Article 21 of the
Constitution of India, sexual integrity falls within the domain of personal
liberty.
·
Adultery is no longer a criminal
offence- A crime is committed against the society as a
whole whereas adultery is a personal issue. Adultery does not fit into the
ambit of crime as it would otherwise invade the extreme privacy sphere of
marriage. However, adultery can be considered as a civil wrong and is a valid
ground for divorce.
·
Husband is not the master of his
wife- A crime is committed against the society as a
whole whereas adultery is a personal issue. Adultery does not fit into the
ambit of crime as it would otherwise invade the extreme privacy sphere of
marriage. However, adultery can be considered as a civil wrong and is a valid
ground for divorce.
After the historical verdict, it
was expected to have mixed opinions amongst the community as some critics were
in favor of the verdict and some were opposing the decision. People who were in
favor of the verdict had put forward their views that the society perceives
adultery as incorrect and a moral wrong. The law of adultery was constituted in
the past because of the weaker position of women and to safeguard their safety
which was more or less in the hands of their husbands Although now the
situation has changed and women have become more independent and literate.
Critics who are opposing the
notion said it is influenced by western culture and it should be noted that
divorce rates in western countries are 52% and rising and they do not want
India to follow the same trend. Further, in order to sustain marriage it is
recommended to not encourage extra-marital affairs.
The intention behind passing of
adultery law was misinterpreted by people; the law only had one intent behind
it which was to protect interests of women with keeping in regard the position
of women in the society at that time. But, the fact that women nowadays are
getting independent and so much aware of their rights and society as a whole,
needs consideration and with due regard this law should have been reformed as
it has been by the Apex court in this case.
It must be kept in mind that the deletion of
these provisions does not mean that there are no legal consequences for
engaging in adultery. These consequences need not be criminal, and a remedy may
be found in civil law, where adultery already has a place. It is a ground for
divorce in personal laws.
Suzuki Motor v Suzuki (India) LimitedSuzuki Motor (Plaintiff) filed a lawsuit along with an interim appeal seeking injunction against the defendant and other co-defendants for violating their trademark read more
Suzuki
Motor v Suzuki (India) Limited
Suzuki Motor
(Plaintiff) filed a lawsuit along with an interim appeal seeking injunction
against the defendant and other co-defendants for violating their trademark /
trade name / corporate name Suzuki. The Defendant and the other co-defendants
were injuncted by provisional order of the court. However, the other
co-defendants were excluded during the trial stage as they were not necessary
parties. Therefore, during the trial stage, the Defendant was the only disputed
entity. The plaintiff sought a decree against the defendant pursuant to Order
XII Rule 6 of the CPC, as the only defense raised by the defendant in his
written statement was questioning the Court's territorial jurisdiction on the
ground that the defendant does not have a office in Delhi, which he failed to
prove.
The Plaintiff's submissions
were as follows:
1.
Since its inception / incorporation in
1909, the Plaintiff has being using the trade mark Suzuki as part of its
corporate name. Suzuki, being the Plaintiff's founder's family name, is in no
way linked to the Defendant;
2.
The Plaintiff is the registered owner of
the Suzuki trade mark in several countries around the world, including India;
his earliest Indian registration dates back to 1972.
3.
In 1982, the Plaintiff entered into a
joint venture with the Government of India and also licensed its technology to
Maruti Suzuki India Limited, a joint venture; the Plaintiff made extensive
efforts to promote and publicize the same.
4.
Around 1982, the Defendant adopted its
corporate name Suzuki India Limited in relation to its financial and investment
business with a malicious and dishonest intention to embrace the tremendous
goodwill, name and reputation acquired by the Plaintiff and to pass off and
mislead the public that the Defendant's business was related to that of the
Plaintiff;
5.
The defendant is not justified in using
a Japanese surname and the defendant should have knowledge of the statutory and
exclusive right of the Plaintiff to use the Suzuki trade mark
6.
The explanation given (during the
hearing) by the Defendant's Managing Director that his father knew someone by
Suzuki's name is an afterthought;
7.
Pursuant to the provisions of the CPC,
pleadings in the written statement should be clear and an evasive denial of the
evidence claimed in the complaint would be considered to be an admission under
Order VIII Rule 3 and Rule 5 of the CPC and, thus, the Court would pass a
judgment against the defendant under Order XII Rule 6 of the CPC.
The Defendant’s
submissions were as follows:
1.
The Defendant is an honest and
concurrent user and, since 1982, the Defendant has acquired considerable
credibility because of its continuous and uninterrupted use of the Suzuki trade
mark / brand as part of its trade name Suzuki India Limited.
2.
The present case brought in 2005 amounts
to an acquiescence on the part of the Defendants after a delay of more than 25
years.
3.
The name Suzuki was adopted because the
father of the Defendant's Managing Director knew someone by Suzuki's name.
4.
That the Plaintiff's use of Suzuki
relates exclusively to Automobiles, therefore, claim control over all classes
of goods;
5.
That an injunction is not required
pursuant to Order XII Rule 6 of the CPC since the defendant made no admission in
the written statement.
The
Court found that in the present case the defendant chose not to deny the claim
of the plaintiff that the adoption of the Suzuki mark by the defendant was
deceptive, calculated to be deceiving, and that the defendant had constructive
knowledge of the statutory and exclusive right of the plaintiff over the Suzuki
mark. The Defendant also refused to dispute that at the time of the adoption of
its mark it was fully aware of the Plaintiff's mark Suzuki and that the
defendant's wrongful use of the mark Suzuki would cause harm to the Plaintiff
and his goodwill and credibility painfully established by the Plaintiff over
the years at considerable cost.
On
the Defence of 25 years delay and concurrent consumer, the Court also observed
that the defendant, being a fraudulent infringer, could not complain of delay
and hide behind the defense of delay, laughter or consent as the infringement
itself was fraudulent at the very initial stage. The delay and laches alone
would not confer legitimacy character on fraud. Since the adoption of the
trademark was fraudulent, a delay in bringing an action is not enough to negate
the injunction award.
On
the argument that the nature of the business of the defendant is different, the
Court observed that it is not appropriate, with the evolving principle in the
passing-off rule, that the plaintiff and the defendant should engage in the
same business field. The Court held that ample material had been collected by
the plaintiff to prove that the Suzuki mark of the plaintiff was a well-known
mark in India back in 1982 when the defendant took the same. In the industry
the name Suzuki has gained distinctive. Accordingly, under
Order XII Rule 6 of the CPC, the suit was decreed in favor of the Plaintiff
with a finding that Suzuki is a well-known mark.
M/S. Nandhini Deluxe vs M/S. Karnataka Cooperative Milk 9 SSC 183ISSUE:- The dispute is about the use of a mark ' NANDHINI ' under Section 1, 9 11 and 18 of the Trademark Act,1999.It read more
M/S. Nandhini Deluxe vs M/S.
Karnataka Cooperative Milk 9 SSC 183
ISSUE:- The dispute is about the use of a mark ' NANDHINI ' under Section 1, 9 11 and 18 of the Trademark
Act,1999.
It is important to note that in Bangalore both the
Appellant and the respondent carry on business. In the year 1985, KARNATAKA
CO-OPERATIVE MILK adopted the aforementioned Trademark' NANDINI' and produced
and sold milk and milk products under this brand name. they had this trademark registered under Class 29 and Class 30 as
well. On the other hand, the appellant is in the business of running
restaurants and in 1989 he adopted the' NANDHINI’ Tademark for his restaurants and applied for the
registration of the said mark in respect of various food items sold by him in
his restaurants. The respondent had objected to the registration and the
respondent's objections were rejected by the Trade Mark Deputy Registrar and
gave decision in favour of appellant. This order discloses that the applicant's
application for registration of the trade mark ' NANDHINI DELUXE WITH LOGO (Kannada)
had been transferred herein.
The respondent objects to the appellant on the
ground that it is deceptively close to the respondent's mark and is likely to
deceive the public or cause confusion. The respondent approached the Intellectual
Property Appellate Board when those complaints were dismissed by the Deputy
Registrar and the registration issued to the appellant. The appeal have been
accepted by the IPAB. Registration was objected to under Sections 9,11,12 and 18 of the Act. The IPAB rejected the respondent's opposition
to the registration of a trade mark ' NANDHINI ' as demanded by the appellant and
enabling the appellant to apply for registration, except for milk and milk
products. The IPAB noted that the respondent deals with milk and milk products
in the instant case whereas the appellant deals with other items such as meat and
fish etc. The High Court upholding the IPAB's and dismissing the appellant's
written petitions herein did nothing but accept the IPAB's foregoing reasoning,
namely that
(a) the NANDINI mark retained by the respondent
acquired a distinctive character and became well-known;
(b) the use of another mark differed only in one
alphabet but without any differences;
(c) the appellant's claim that the restaurant
business had been in service since 1989 and that since 1985 the respondent had
started to use the mark ' NANDINI ' only for milk and not for other items was
dismissed on the grounds that there was no justification for the aforementioned
statement and that no evidence was created to substantiate the same argument.
SUPREME COURT OBSERVATION
The Hon’ble SC
relied on National Sewing Thread Co. Ltd. vs.
James Chadwick and Bros, accepted the following principle of
this case which are applied to this case which states that “ The burden of proving that the trade mark which a
person seeks to register is not likely to deceive or to cause confusion is upon
the applicant. It is for him to satisfy the Registrar that his trade mark does
not fall within the prohibition of Section
8 and therefore it should be registered.
Moreover in deciding whether a particular trade mark is likely to deceive or
cause confusion that duty is not discharged by arriving at the result by merely
comparing it with the trade mark which is already registered and whose
proprietor is offering opposition to the registration of the mark
.
Applying the aforesaid principle described above to the instant case, the SC considers
that not only the visual appearance of the two marks different, they also apply
to different products. However, it is difficult to imagine that an average man
of ordinary intelligence will equate the appellant's goods with that of the
respondent in the manner in which they are exchanged by the appellant and the
respondent, respectively, illustrated above.
Another significant factor that both the IPAB and the High Court have
lost sight of is that the appellant runs a restaurant under the ' NANDHINI '
trademark and applied the trademark for products such as coffee, tea, cocoa,
sugar, rice, rapioca, sago etc. Having
reached the above conclusion, the High Court's argument that the products
belonging to the appellant and the respondent (although the essence of the
goods is different) belong to the same class and it would therefore be
inadmissible for the appellant to have the registration of the trade mark in
question in his favour, would have no significance.
As a result, IPAB and High Court orders are
rescinded. These appeals are permitted and the order of the Deputy Registrar
granting registration in favor of the appellant is hereby restored, subject to
the amendment that the registration is not issued in respect of those milk and
milk products for which the appellant has abandoned his argument.
Essentials of a valid contractA contract defined under Section-2(h) of The Contract Act, 1872(hereinafter referred to as “the act”) means “any agreement which is enforceable by law”. Contracts can be read more
Essentials
of a valid contract
A
contract defined under Section-2(h) of The Contract Act, 1872(hereinafter
referred to as “the act”) means “any agreement which is enforceable by law”. Contracts can be written by using formal
or informal terms, or could be entirely verbal or spoken.
According to Salmond, “A contract is an
agreement creating and defining obligation between two or more persons by
which rights are acquired by one or more acts or forbearance on the part
of others”.
There
are certain elements that, when fulfilled, would constitute a valid contract
and contrary to that it would be considered null and void depending on the
circumstances. Section-10 of “the act” enumerates certain conditions which must
be fulfilled in order to constitute a valid contract.
1- Offer and acceptance:
There needs to be a lawful offer and acceptance to form a contract. The term
'lawful ' means that, in relation to this, the offer and acceptance must meet
the requirements of the contract act. The offer or proposal is defined under section-2(a) of the Contract Act. Section-2(b) of the Act provides that when an
offer is accepted then it becomes a promise.
Mere
knowledge of the contract does not constitute acceptance, it must be expressed
as was held in the case of Lalman Shukla v Gauri Dutt.
2- Intention of creating a legal
relationship: There
must be a clear intention among the parties that the agreement should be
attached by legal consequences and create a legal obligation. What this means
are those arrangements which are not enforceable by law, e.g. social or
domestic agreements between spouses or friends, which cannot be enforced in a
court of law would not constitute contract. Legal relationship will be implied
when failure of a said act mentioned in the contract would result in legal
consequences.
3-
Lawful Consideration: In Currie
v. Misa, Justice
Lush defined consideration, “A
valuable Consideration in the sense of law may consist either in some Rights,
Interest, Profit or Benefit accruing to one party or some forbearance
detriment, loss or responsibility given, suffered or undertaken by the other”. Consideration
means ' something in return ' which means that the parties have to accrue in
some form, whether it be profit, rights, interest, etc. or agree to have some
form of beneficial "consideration."
Section-25 states
that any contract without consideration is void as it is considered the essence
of a contract. However under section-23 there are certain considerations that
would be unlawful as:
·
They are forbidden by
law.
·
It is of such a nature
that, if permitted, it would defeat the provisions of any law, or is
fraudulent.
·
It involves or implies injury to the
person or property of another.
·
The Court regards it as immoral or opposed
to public policy.
If even one of these conditions is fulfilled, it will further
render the agreement illegal.
4- Parties must be
competent to contract: In order to
constitute a contract, the parties engaging in the same must be competent to
contract. Section 11 of “the act” states the criteria of parties who are
competent to contract:
·
The parties must attain
the age of majority i.e. 18 years. An agreement with a person who is a minor,
will be considered void ab intio(Mohri Bibi
v Dharmodas Ghose, 1903)
·
The person must be of
sound mind i.e. not an insane person.
·
He/she should be disqualified
from the law to engage in a contract.
5- Free consent by
the parties: This implies to the
fact that parties entering into a contract shall enter with their free will and
their decision of engaging should not be influenced by any external factors.
Section-14 of “the act” deals with free consent and provide certain factors, if
so found, would deem a contract invalid. These factors are-
· Coercion: Committing any
act forbidden by the Indian Penal Code or unlawful detain of property, or
threatening to commit these acts.
· Undue influence: The
use of one party’s dominant position to hold an unfair advantage over other
party.
· Fraud: When a party
makes presentation of the terms of contract with the intention to cause damage
to the other party, it amounts to Fraud.
·
Misrepresentation:
False representation of facts
· Mistake: While engaging
in a contract, there should not be any mistake (either of fact or law) from
both or either of the parties.
Further, for a contract to be valid in the eyes of law , it
shouldn’t be expressly declared void
for example agreement without consideration(Section-25), agreement in restraint of marriage(Section-26), agreement in restraint of trade(Section-27), agreements in restraint judicial proceedings(Section-28), an agreement by way wager(Section-30) etc.
Offence means an act or instance of offending, 'commit an illegal act' and an illegal means, contrary to or forbidden by law'. "Offence" has been prescribed under the provisions of Sections 40,41 and read more
Offence means an act or instance of offending, 'commit an illegal act' and an illegal means, contrary to or forbidden by law'. "Offence" has been prescribed under the provisions of Sections 40,41 and 42 IPC which cover the offences punishable under IPC or under special or local law or as defined under Section 2(n)Cr.P.C. or Section 3(38) of the General Clauses Act, 1897.
Noida, India
New Delhi, India
Secunderabad, India
Bengaluru, India
Bengaluru, India
Patiala, India
Patiala, India
Kolkata, India
DAYS
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S-1.4 Credit Card Fraud.
We will not bear the risk of credit card fraud (i.e. a fraudulent purchase arising from the theft and unauthorised use of a third party's credit card information) occurring in connection with Your Transactions. We may in our sole discretion withhold for investigation, refuse to process, restrict download for, stop and/or cancel any of Your Transactions. You will stop and/or cancel orders of Your Documents/ Advices if we ask you to do so. You will refund any customer (in accordance with Section S-2.2) that has been charged for an order that we stop or cancel.
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S-2.2 Returns and Refunds. For all of Your Documents/ Advices that are not fulfilled using Fulfilment by SoOLEGAL, you will accept and process returns, refunds and adjustments in accordance with these Transaction Terms & Conditions and the SoOLEGAL Refund Policies published at the time of the applicable order, and we may inform customers that these policies apply to Your Documents/ Advices. You will determine and calculate the amount of all refunds and adjustments (including any taxes, shipping of any hard copy and handling or other charges) or other amounts to be paid by you to customers in connection with Your Transactions, using a functionality we enable for Your Account. This functionality may be modified or discontinued by us at any time without notice and is subject to the Program Policies and the terms of thisTransaction Terms & Conditions Documents/ Advice. You will route all such payments through SoOLEGAL We will provide any such payments to the customer (which may be in the same payment form originally used to purchase Your Documents/ Advices), and you will reimburse us for all amounts so paid. For all of Your Documents/ Advices that are fulfilled using Fulfilment by SoOLEGAL, the SoOLEGAL Refund Policies published at the time of the applicable order will apply and you will comply with them. You will promptly provide refunds and adjustments that you are obligated to provide under the applicable SoOLEGAL Refund Policies and as required by Law, and in no case later than thirty (30) calendar days following after the obligation arises. For the purposes of making payments to the customer (which may be in the same payment form originally used to purchase Your Documents/ Advices), you authorize us to make such payments or disbursements from your available balance in the Nodal Account (as defined in Section S-6). In the event your balance in the Nodal Account is insufficient to process the refund request, we will process such amounts due to the customer on your behalf, and you will reimburse us for all such amount so paid.
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You will pay us: (a) the applicable Referral Fee; (b) any applicable Closing Fees; and (c) if applicable, the non-refundable Transacting on SoOLEGAL Subscription Fee in advance for each month (or for each transaction, if applicable) during the Term of this Transaction Terms & Conditions. "Transacting on SoOLEGAL Subscription Fee" means the fee specified as such on the Transacting on SoOLEGALSoOLEGAL Fee Schedule for the SoOLEGAL Site at the time such fee is payable. With respect to each of Your Transactions: (x) "Transactions Proceeds" has the meaning set out in the Transaction Terms & Conditions; (y) "Closing Fees" means the applicable fee, if any, as specified in the Transacting on SoOLEGAL Fee Schedule for the SoOLEGAL Site; and (z) "Referral Fee" means the applicable percentage of the Transactions Proceeds from Your Transaction through the SoOLEGAL Site specified on the Transacting on SoOLEGAL Fee Schedule for the SoOLEGAL Site at the time of Your Transaction, based on the categorization by SoOLEGAL of the type of Documents/ Advices that is the subject of Your Transaction; provided, however, that Transactions Proceeds will not include any shipping charge set by us in the case of Your Transactions that consist solely of SoOLEGAL-Fulfilled Documents/ Advices. Except as provided otherwise, all monetary amounts contemplated in these Service Terms will be expressed and provided in the Local Currency, and all payments contemplated by this Transaction Terms & Conditions will be made in the Local Currency.
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S-6.1.Nodal Account. Remittances to you for Your Transactions will be made through a nodal account (the "Nodal Account") in accordance with the directions issued by Reserve Bank of India for the opening and operation of accounts and settlement of payments for electronic payment transactions involving intermediaries vide its notification RBI/2009-10/231 DPSS.CO.PD.No.1102 / 02.14.08/ 2009-10 dated November 24, 2009. You hereby agree and authorize us to collect payments on your behalf from customers for any Transactions. You authorize and permit us to collect and disclose any information (which may include personal or sensitive information such as Your Bank Account information) made available to us in connection with the Transaction Terms & Conditions mentioned hereunder to a bank, auditor, processing agency, or third party contracted by us in connection with this Transaction Terms & Conditions.
Subject to and without limiting any of the rights described in Section 2 of the General Terms, we may hold back a portion or your Transaction Proceeds as a separate reserve ("Reserve"). The Reserve will be in an amount as determined by us and the Reserve will be used only for the purpose of settling the future claims of customers in the event of non-fulfillment of delivery to the customers of your Documents/ Advices keeping in mind the period for refunds and chargebacks.
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"Your Transaction" is defined in the Transaction Terms & Conditions; however, as used in Terms & Conditions, it shall mean any and all such transactions whereby you conduct Transacting of Documents/ Advices or advice sought from you by clients/ customers in writing or by any other mode which is in coherence with SoOLEGAL policy on SoOLEGAL site only.
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SoOLEGAL reserves the right to request additional information and to confirm the validity of any your account information (including without limitation your PAN registration number) from you or government authorities and agencies as permitted by Law and you hereby irrevocably authorize SoOLEGAL to request and obtain such information from such government authorities and agencies. Further, you agree to provide any such information to SoOLEGAL upon request. SoOLEGAL reserves the right to charge you any applicable unbilled PAN if you provide a PAN registration number, or evidence of being in a Professional Firm, that is determined to be invalid. PAN registered REGISTERED USERs and REGISTERED USERs who provide evidence of being in Law Firm agree to accept electronic PAN invoices in a format and method of delivery as determined by SoOLEGAL.
All payments by SoOLEGAL to you shall be made subject to any applicable withholding taxes under the applicable Law. SoOLEGAL will retain, in addition to its net Fees, an amount equal to the legally applicable withholding taxes at the applicable rate. You are responsible for deducting and depositing the legally applicable taxes and deliver to SoOLEGAL sufficient Documents/ Advice evidencing the deposit of tax. Upon receipt of the evidence of deduction of tax, SoOLEGAL will remit the amount evidenced in the certificate to you. Upon your failure to duly deposit these taxes and providing evidence to that effect within 5 days from the end of the relevant month, SoOLEGAL shall have the right to utilize the retained amount for discharging its tax liability.
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SoOLEGAL has the option to obtain an order for lower or NIL withholding tax from the Indian Revenue authorities. In case SoOLEGAL successfully procures such an order, it will communicate the same to you. In that case, the amounts retained, shall be in accordance with the directions contained in the order as in force at the point in time when tax is required to be deducted at source.
Any taxes applicable in addition to the fee payable to SoOLEGAL shall be added to the invoiced amount as per applicable Law at the invoicing date which shall be paid by you.F.11. Indemnity
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Category and Documents/ Advice RestrictionsCertain Documents/ Advices cannot be listed or sold on SoOLEGAL site as a matter of compliance with legal or regulatory restrictions (for example, prescription drugs) or in accordance with SoOLEGAL policy (for example, crime scene photos). SoOLEGAL's policies also prohibit specific types of Documents/ Advice content. For guidelines on prohibited content and copyright violations, see our Prohibited Content list. For some Documents/ Advice categories, REGISTERED USERS may not create Documents/ Advice listings without prior approval from SoOLEGAL. |
In addition to your obligations under Section 6 of the Transaction Terms & Conditions, you also agree to indemnify, defend and hold harmless us, our Affiliates and their and our respective officers, directors, employees, representatives and agents against any Claim that arises out of or relates to: (a) the Units (whether or not title has transferred to us, and including any Unit that we identify as yours pursuant to Section F-4 regardless of whether such Unit is the actual item you originally sent to us), including any personal injury, death or property damage; and b) any of Your Taxes or the collection, payment or failure to collect or pay Your Taxes.
Registered Users must at all times adhere to the following rules for the Documents/ Advices they intend to put on Transaction:
The "Add a Documents/ Advice" feature allows REGISTERED USERS to create Documents/ Advice details pages for Documents/ Advices.
The following rules and restrictions apply to REGISTERED USERS who use the SoOLEGAL.in "Add a Documents/ Advice" feature.
Using this feature for any purpose other than creating Documents/ Advice details pages is prohibited.
Any Documents/ Advice already in the SoOLEGAL.in catalogue which is not novel and/ or unique or has already been provided by any other Registered User which may give rise to Intellectual Property infringement of any other Registered User is prohibited.
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The inclusion of any of the following information in detail page titles, descriptions, bullet points, or images is prohibited:
Information which is grossly harmful, harassing, blasphemous, defamatory, pedophilic, libelous, invasive of another's privacy, hateful, or racially, ethnically objectionable, disparaging, relating or encouraging money laundering or gambling, pornographic, obscene or offensive content or otherwise unlawful in any manner whatever.
Availability, price, condition, alternative ordering information (such as links to other websites for placing orders).
Reviews, quotes or testimonials.
Solicitations for positive customer reviews.
Advertisements, promotional material, or watermarks on images, photos or videos.
Time-sensitive information
Information which belongs to another person and to which the REGISTERED USER does not have any right to.
Information which infringes any patent, trademark, copyright or other proprietary rights.
Information which deceives or misleads the addressee about the origin of the messages or communicates any information which is grossly offensive or menacing in nature.
Information which threatens the unity, integrity, defence, security or sovereignty of India, friendly relations with foreign states, or public order or causes incitement to the commission of any cognizable offence or prevents investigation of any offence or is insulting any other nation.
Information containing software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer resource.
Information violating any law for the time being in force.
All Documents/ Advices should be appropriately and accurately classified to the most specific location available. Incorrectly classifying Documents/ Advices is prohibited.
Documents/ Advice titles, Documents/ Advice descriptions, and bullets must be clearly written and should assist the customer in understanding the Documents/ Advice. .
All Documents/ Advice images must meet SoOLEGAL general standards as well as any applicable category-specific image guidelines.
Using bad data (HTML, special characters */? etc.) in titles, descriptions, bullets and for any other attribute is prohibited.
Do not include HTML, DHTML, Java, scripts or other types of executables in your detail pages.
Prohibited REGISTERED USER Activities and Actions
SoOLEGAL.com REGISTERED USER Rules are established to maintain a transacting platform that is safe for buyers and fair for REGISTERED USERS. Failure to comply with the terms of the REGISTERED USER Rules can result in cancellation of listings, suspension from use of SoOLEGAL.in tools and reports, or the removal of transacting privileges.
Attempts to divert transactions or buyers: Any attempt to circumvent the established SoOLEGAL Transactions process or to divert SoOLEGAL users to another website or Transactions process is prohibited. Specifically, any advertisements, marketing messages (special offers) or "calls to action" that lead, prompt, or encourage SoOLEGALusers to leave the SoOLEGAL website are prohibited. Prohibited activities include the following:
The use of e-mail intended to divert customers away from the SoOLEGAL.com Transactions process.
Unauthorised & improper "Names": A REGISTERED USER's Name (identifying the REGISTERED USER's entity on SoOLEGAL.com) must be a name that: accurately identifies the REGISTERED USER; is not misleading: and the REGISTERED USER has the right to use (that is, the name cannot include the trademark of, or otherwise infringe on, any trademark or other intellectual property right of any person). Furthermore, a REGISTERED USER cannot use a name that contains an e-mail suffix such as .com, .net, .biz, and so on.
Unauthorised & improper invoicing: REGISTERED USERS must ensure that the tax invoice is raised in the name of the end customer who has placed an order with them through SoOLEGAL Payment Systems platform . The tax invoice should not mention SoOLEGAL as either a REGISTERED USER or a customer/buyer. Please note that all Documents/ Advices listed on SoOLEGAL.com are sold by the respective REGISTERED USERS to the end customers and SoOLEGAL is neither a buyer nor a REGISTERED USER in the transaction. REGISTERED USERS need to include the PAN/ Service Tax registration number in the invoice.
Inappropriate e-mail communications: All REGISTERED USER e-mail communications with buyers must be courteous, relevant and appropriate. Unsolicited e-mail communications with SoOLEGAL , e-mail communications other than as necessary and related customer service, and e-mails containing marketing communications of any kind (including within otherwise permitted communications) are prohibited.
Operating multiple REGISTERED USER accounts: Operating and maintaining multiple REGISTERED USER accounts is prohibited.
In your request, please provide an explanation of the legitimate business need for a second account.
Misuse of Search and Browse: When customers use SoOLEGAL's search engine and browse structure, they expect to find relevant and accurate results. To protect the customer experience, all Documents/ Advice-related information, including keywords and search terms, must comply with the guidelines provided under . Any attempt to manipulate the search and browse experience is prohibited.
Misuse
of the ratings, feedback or Documents/ Advice reviews: REGISTERED
USERS cannot submit abusive or inappropriate feedback entries,
coerce or threaten buyers into submitting feedback, submit
transaction feedback regarding them, or include personal information
about a transaction partner within a feedback entry. Furthermore,
any attempt to manipulate ratings of any REGISTERED USER is
prohibited. Any attempt to manipulate ratings, feedback, or
Documents/ Advice reviews is prohibited.
Reviews: Reviews
are important to the SoOLEGAL Platform, providing a forum for
feedback about Documents/ Advice and service details and reviewers'
experiences with Documents/ Advices and services –
positive
or negative. You may not write reviews for Documents/ Advices or
services that you have a financial interest in, including reviews
for Documents/ Advices or services that you or your competitors deal
with. Additionally, you may not provide compensation for a review
(including free or discounted Documents/ Advices). Review
solicitations that ask for only positive reviews or that offer
compensation are prohibited. You may not ask buyers to modify or
remove reviews.
Prohibited Content
REGISTERED USERS are expected to conduct proper research to ensure that the items posted to our website are in compliance with all applicable laws. If we determine that the content of a Documents/ Advice detail page or listing is prohibited, potentially illegal, or inappropriate, we may remove or alter it without prior notice. SoOLEGAL reserves the right to make judgments about whether or not content is appropriate.
The
following list of prohibited Documents/ Advices comprises two
sections: Prohibited Content and Intellectual Property
Violations.
Listing
prohibited content may result in the cancellation of your listings,
or the suspension or removal of your transacting privileges.
REGISTERED USERS are responsible for ensuring that the Documents/
Advices they offer are legal and authorised for Transaction or
re-Transaction.
If
we determine that the content of a Documents/ Advice detail page or
listing is prohibited, potentially illegal, or inappropriate, we may
remove or alter it without prior notice. SoOLEGAL reserves the right
to make judgments about whether or not content is appropriate.
Illegal and potentially illegal Documents/ Advices: Documents/ Advices sold on SoOLEGAL.in must adhere to all applicable laws. As REGISTERED USERS are legally liable for their actions and transactions, they must know the legal parameters surrounding any Documents/ Advice they display on our website.
Offensive material: SoOLEGAL reserves the right to determine the appropriateness of listings posted to our website.
Nudity: In general, images that portray nudity in a gratuitous or graphic manner are prohibited.
Items that infringe upon an individual's privacy. SoOLEGAL holds personal privacy in the highest regard. Therefore, items that infringe upon, or have potential to infringe upon, an individual's privacy are prohibited.
Intellectual Property Violations
Counterfeit merchandise: Documents/ Advices displayed on our website must be authentic. Any Documents/ Advice that has been illegally replicated, reproduced or manufactured is prohibited.
Books - Unauthorised copies of books are prohibited.
Movies - Unauthorised copies of movies in any format are prohibited. Unreleased/prereleased movies, screeners, trailers, unpublished and unauthorized film scripts (no ISBN number), electronic press kits, and unauthorised props are also prohibited.
Photos - Unauthorised copies of photos are prohibited.
Television Programs - Unauthorised copies of television Programs (including pay-per-view events), Programs never broadcast, unauthorised scripts, unauthorised props, and screeners are prohibited.
Transferred media. Media transferred from one format to another is prohibited. This includes but is not limited to: films converted from NTSC to Pal and Pal to NTSC, laserdisc to video, television to video, CD-ROM to cassette tape, from the Internet to any digital format, etc.
Promotional media: Promotional versions of media Documents/ Advices, including books (advance reading copies and uncorrected proofs), music, and videos (screeners) are prohibited. These Documents/ Advices are distributed for promotional consideration and generally are not authorized for Transaction.
Rights of Publicity: Celebrity images and/or the use of celebrity names cannot be used for commercial purposes without permission of a celebrity or their management. This includes Documents/ Advice endorsements and use of a celebrity's likeness on merchandise such as posters, mouse pads, clocks, image collections in digital format, and so on.
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